Supreme Court settles the applicability of Section 85(9) of the Kerala Land Reforms Act in land surrender cases: State of Kerala vs. Kondottyparambanm (05 August 2008)

Introduction

Date of the Judgment: 05 August 2008

Judges: Tarun Chatterjee, J., Harjit Singh Bedi, J.

When can a land board reopen a case involving the surrender of excess land? The Supreme Court of India addressed this question in a case concerning the Kerala Land Reforms Act. The core issue revolved around whether the dismissal of a revision petition by the High Court due to delay would prevent the Taluk Land Board from reopening a case under Section 85(9) of the Kerala Land Reforms Act, 1963. The Supreme Court, in this judgment delivered by Justice Tarun Chatterjee and Justice Harjit Singh Bedi, clarified the circumstances under which the Land Board retains its authority to re-examine cases related to land surrenders.

Case Background

The case originated from a statement filed by the Respondents under Section 85(A) of the Kerala Land Reforms Act, 1963, concerning lands held by their family. According to the verification report, the family consisted of five members: the respondent, his wife, and three minor children. The total land held by the family was equivalent to 25.40 standard acres, with 0.85 acres eligible for exemption under Section 81 of the Act. The Taluk Land Board (TLB) provisionally concluded that the family held 36.88 acres in excess of the ceiling limit, after allowing them to retain 18.72 acres.

A draft statement with a notice under Rule 12(i) of the Kerala Land Reform (Ceiling) Rules was issued to the respondents, inviting objections and a hearing before the Board. The respondents filed their objections, which were verified through an Authorised Officer.

On June 13, 1985, the Board determined that the respondents possessed 10.63 standard acres, with 0.85 acres falling under the exempted category, resulting in a net extent accountable of 18.47 acres. Since the respondent’s family was entitled to retain 11 standard acres, the Board concluded that the respondents were not liable to surrender any land.

Timeline:

Course of Proceedings

The appellants filed a Revision before the High Court against the judgment of the Board, along with an application for condonation of delay. However, the High Court dismissed the application for condonation of delay, and the Revision was also dismissed as belated. The High Court did not address the merits of the Revision Case, rejecting it solely on the grounds of delay.

Upon scrutiny of the Board’s order by the State Land Board, it was found that the respondents were entitled to retain only 10 standard acres of land, as opposed to the 11 standard acres determined by the Board. Consequently, the State Land Board directed the Board to reopen the case.

The case was reopened, and notice was issued to the respondents, stating that according to the enquiry report dated 7th of January, 1976, the family of the respondent consisted of only 5 members as on 1st of January, 1970, and that the family was holding 11 standard acres instead of the prescribed limit of 10 standard acres for a family consisting of 5 members. The respondents were called upon to file their objections by 10th of June, 1992.

Legal Framework

The central legal provision in this case is Section 85 of the Kerala Land Reforms Act, 1963, which deals with the surrender of excess lands. Specifically, Section 85(9) grants the Taluk Land Board the authority to review its own orders under certain conditions. The section states:

(9) The Taluk Land Board may, at any time, set aside its order under sub-section (5) or sub-section (7), as the case may be, and proceed afresh under that sub-section if it is satisfied that –

(a) the extent of lands surrendered by, or assumed from, a person under section 86 is less than the extent of lands which he was liable to surrender under the provisions of this Act, or

(b) the lands surrendered by, or assumed from, a person are not lawfully owned or held by him; or

(c) in a case where a person is, according to such order, not liable to surrender any land, such person owns or holds lands in excess of the ceiling area;

The provision includes two provisos:

Provided that the Taluk Land Board shall not set aside any order under this sub-section without giving the persons affected thereby an opportunity of being heard;

Provided further that the Taluk Land Board shall not initiate any proceedings under this sub-section [after the expiry of seven years] from the date on which the order sought to be set aside has become final.

This section empowers the Board to correct errors or oversights in its earlier decisions, ensuring that land is surrendered according to the provisions of the Act. However, this power is subject to the conditions that affected parties are given a hearing and that the review is initiated within seven years of the original order becoming final.

Arguments

Arguments by the Appellants (State of Kerala):

• The impugned judgment of the High Court dated 1st of June, 2001, was incorrect as it was not in agreement with the judgment of the Supreme Court in Kunhayammed & Others Vs. State of Kerala & Anr. [(2000) 6 SCC 359].

• The principle of merger would be applicable only if the revisional judgment of the High Court could be said to be a judgment on merits. This principle would not apply to the present case since the revision was dismissed by the High Court only on the ground of delay and not on merits.

• The dismissal of the revision petition by the High Court on the ground of delay did not amount to confirmation of the order of the Board dated 13th of June, 1985.

Arguments by the Respondents (Kondottyparambanm Moosa & Ors.):

• According to the order passed by the Board dated 16th of June, 1985, the respondent was not liable to surrender any land. Once the order of the Board had been affirmed by the High Court of Kerala, the Board could not reopen the case because the order of the Board had completely merged with the order of the High Court passed in revision.

• The appellants have not given any reason to reopen the case, and the State cannot be permitted to reopen the assessments which have attained finality unless it could show special reasons for doing the same.

Issues Framed by the Supreme Court

1. Whether the dismissal of a Revision Petition on the ground of delay would result in the merger of the order of the lower court with that of the High Court.

2. Whether the High Court was right in holding that the order of the Board ceased to exist when the Revision was dismissed by the High Court and as such there was no scope to invoke Section 85(9) of the Act.

Treatment of the Issue by the Court: “The following table demonstrates as to how the Court decided the issues”

Authorities

The court considered the following authorities:

• Smt. S. Kalawati vs. Durga Prasad & Anr. [AIR 1975 SC 1272] – Relied upon to establish that dismissal of an appeal on preliminary grounds does not amount to a decision on appeal or affirmance.

  “The principle behind the majority of the decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not entertained, the decision cannot be said to be a decision on appeal nor of affirmance. It is only where the appeal is heard and the judgment delivered thereafter the judgment can be said to be a judgment of affirmance.”

• Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat [(1969) 2 SCC 74] – Cited to lay down the preconditions for the applicability of the doctrine of merger.

  1. the jurisdiction exercised should be appellate or revisional jurisdiction;
  2. the jurisdiction should have been exercised after issue of notice ; and,
  3. after a full hearing in presence of both the parties.”

• Kunhayammed & Ors. Vs. State of Kerala & Anr. [2000 (6) SCC 359] – Approved the principles laid down in Shankar Ramchandra Abhyankar’s case and observed on the nature of jurisdiction exercised by the superior forum.

  “Once the superior court has disposed of the lis before it either way – whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.”

• Chandi Prasad and Others Vs. Jagdish Prasad and Ors. (2004) 8 SCC 724 – Used to support the view that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.

  “When an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.”

• Section 85(9) of the Kerala Land Reforms Act, 1963 – Interpreted to determine the powers of the Taluk Land Board to set aside its orders.

Judgment

How each authority was viewed by the Court:

• Smt. S. Kalawati vs. Durga Prasad & Anr. [AIR 1975 SC 1272]: The Court strongly relied on this case to support the principle that dismissal on preliminary grounds does not amount to a decision on appeal or affirmance.
• Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat [(1969) 2 SCC 74]: The Court referred to this case to define the preconditions for the applicability of the doctrine of merger.
• Kunhayammed & Ors. Vs. State of Kerala & Anr. [2000 (6) SCC 359]: The Court approved the principles laid down in Shankar Ramchandra Abhyankar’s case and observed on the nature of jurisdiction exercised by the superior forum.
• Chandi Prasad and Others Vs. Jagdish Prasad and Ors. (2004) 8 SCC 724: The Court reproduced an observation from this case to emphasize that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.

What weighed in the mind of the Court?

The Supreme Court’s decision in the case of State of Kerala & Anr. v. Kondottyparambanm Moosa & Ors. was primarily influenced by the interpretation of legal principles and precedents concerning the doctrine of merger and the powers of the Taluk Land Board under Section 85(9) of the Kerala Land Reforms Act. The Court emphasized that the dismissal of a revision petition by the High Court on the ground of delay does not result in the merger of the lower court’s order with that of the High Court. This was a critical point that weighed heavily in the Court’s reasoning.

The Court also considered the need to ensure that the Taluk Land Board retains its jurisdiction to reopen cases where there are valid grounds for doing so under Section 85(9) of the Act. The Court was keen to prevent the High Court’s order, which was based solely on procedural grounds (delay), from impeding the Board’s ability to rectify any errors or oversights in its earlier decisions.

The Court’s reasoning can be summarized as follows:

Key Takeaways

• Dismissal of a revision petition on the ground of delay does not result in the merger of the lower court’s order with that of the High Court.

• The Taluk Land Board retains its jurisdiction under Section 85(9) of the Kerala Land Reforms Act to reopen cases, even if a revision petition has been dismissed on the ground of delay.

• The principle of merger applies only when a higher forum entertains an appeal or revision and passes an order on merit.

Development of Law

The ratio decidendi of the case is that the dismissal of a revision petition by the High Court on the ground of delay does not result in the merger of the lower court’s order with that of the High Court. As a result, the Taluk Land Board retains its jurisdiction under Section 85(9) of the Kerala Land Reforms Act to reopen cases, provided that the conditions specified in that section are met. This clarifies the scope and interpretation of Section 85(9) of the Kerala Land Reforms Act.

Conclusion

In summary, the Supreme Court allowed the appeal, setting aside the judgment of the High Court. The Court held that the dismissal of a revision petition on the ground of delay does not result in the merger of the lower court’s order with that of the High Court. Therefore, the Taluk Land Board wasjustified in reopening the case under Section 85(9) of the Kerala Land Reforms Act. This decision reinforces the authority of the Taluk Land Board to correct errors and ensure compliance with the provisions of the Act, even in cases where a revision petition has been dismissed on procedural grounds.