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TMI Blog2004 (12) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... under the head 'other agricultural land interspersed'. It cannot be said that Taluk Land Board, while determining this area, did not take into consideration relevant factors as mentioned in clause (c) of Section 2(44) of the Act. We do not think it was necessary for the High Court to lay down any further guidelines than what are given in the provision and for that purpose to remand the matter again to the Taluk Land Board. We would, therefore, set aside the order of the High Court to that extent. Since the appellant never claimed exemption outside the ceiling area on the ground of cardamam plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, unnecessary for us to go into the question if cardamom plantation existed at the relevant time. We, therefore, uphold the judgment of the High Court on the extent of 'fuel area' and 'rested tea area' as determined finally by this Court and would di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant it will mean and include its predecessor-in-title as well.) Total area of the land held by the appellant is 4251.19 acres. Out of this an area of 267.16 acres was sought to be surrendered. From the area held by the appellant it claimed exemption under four heads, namely, (1) Tea Plantation (2) Roads Building; (3) Area for Fuel Trees; and (4) Other agricultural lands interspersed. By order dated June 25, 1976 Taluk Land Board disallowed substantial claims of thee appellant for exemption as 'fuel areas' and 'rested tea area'. Matter was taken up by the appellant to the Kerala High Court in revision which by order dated March 15, 1977 restored the claims made by the appellant under those two heads and under the heads 'Roads and Buildings' and 'Other Agricultural Land interspersed' and remanded the case to the Taluk Land Board for re-determination of the ceiling area. The Taluk Land Board and the State of Kerala which felt aggrieved appealed to this Court regarding the claims of exemption under the heads 'fuel area' and 'rested tea area'. This Court by judgment dated May 2, 1979 allowed the appeal and restored the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n May 2, 1979 along with many other appeals from he various judgments of the Kerala High Court and is reported as Chettian Veetil Ammad Anr. Vs. Taluk Land Board and ors. (1980 (1) SCC 499). This court was considering a group of appeals arising from various judgments of the Kerala High Court relating to the implementation of provisions for the restriction of ownership and possession of land in excess of ceiling area and the disposal of excess land under the provisions of the Act. This Court noted that there were three points of controversy and gave its decision. However, none of those points were concerned in the appeal filed by the Taluk Land Board (CA 227/78). After giving answer to the questions this COurt examined individual appeals and dealing with the appeal in the case of the appellant, it held as under: The controversy before us relates to exclusion of fuel area and rested area . The Company has claimed that it has planted red gum as fuel in 924.01 acres as it was required for the manufacture of tea . The Taluk Board found it to be an exorbitant claim and reduced it to 200 acres, but the High Court has restored the entire claim. The General Manager of the Company has stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 85 where a person owns or holds land in excess of the ceiling area, he is required to file a statement before the Land Board in the Form prescribed wherein he is to indicate the lands prroposed to be surrendered. Under sub-section (5), the statement so filed is to be transferred by the Land Board to the Taluk Land Board to verify the particulars and then by order to determine the extent of identity of the land which is surrendered. Under sub-section (9), Taluk Land Board on certain conditions existing and at any time has powerr to set aside its order made under sub-section. Sub-section (9A) which was inserted by the Amending Act w.e.f. May 30, 1989. Taluk Land Board has been given powers to review its decisions. Statement/Return under sub-section (2) of Section 85 is required to be filed in Form 1 under rule 4. Pules further prescribe as to how the statement will be filed before the Land Board and then transferred to the Taluk Land Board, its verification as to ascertainment and determination of the extent and identity of the and to be surrendered publication of draft statement and service of draft statement on persons interested; enquiry to determine extent and iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as fuel clearing area for firewood for tea manufacture, an area of 421.88 acres contained Cardamom plantation which had been planted prior to 1964. Taluk Land Board was of the view that the remaining 302.21 acres out of 924.01 acres should also be exempted as it was satisfied that the area earlier claimed was interspersed with cardamom plantation. But because it was first claimed as fuel clearing area, the interspersed area could not be taken over. It, thus, exempted whole of 924.01 acres holding that it could not be treated as surplus land. There have been Eucalyptus trees growing in whole of this area. On the question of claim of the appellant regarding 136.17 acres as 'rested tea area', reference was made to the observation of the Supreme Court where this Court said that if plucking was carried on in the said land, it would be included within the plantation. Taluk Land Board held that in view of the affidavit dated February 5, 1980 filed by the appellant before it and on its local inspection there were tree plants more than 60 years old in the area of 136.17 acres and to that effect there was also a certificate of United Planters' Association of southern India (UPA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions of the parties, we direct that the Cardamom Board established under Section 4 of the Cardamom Act, 1965, will appoint one of its Senior Expert officers to inspect the area of 924 acres said to be cardamom plantation who, after inspection, will submit plantation who, after inspection, will submit a report to this Court on the question of existence extent of area and age of the cardamom plants in that area (since it is stated before us by the counsel for the petitioners that cardamom plants could be of the age varying between 20 to 40 years). We also direct that the said officer will take the assistance and help of an appropriate revenue officer to be appointed by the Collector of Iddikki in the matter of inspection and submission of report. The inspection is to be undertaken after notice to both sides, whose representatives will be at liberty to remain present at the inspection. The report should be submitted to this Court within four months from today. Such inspection and report will initially be at the cost and expenses of the Petitioners. Matter to be placed on Board after the receipt of the Report. Cardamom Board submitted its report accepting the claim of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tea plantations. 4. Under Section 2(44) of the Act, agricultural lands interspersed within the boundaries of the area cultivated with plantation crops, not exceeding such extent as may be determined by the Land Board as necessary for the protection and efficient management of such cultivation was treated as plantation for exemption from the ceiling area. At the material time when the Taluk Land Board made order dated June 6, 1976, it was not competent to examine the claim regarding land interspersed with plantation crops. It was on that account the question had been remanded to State Land Board for determination. But after the Act was amended by Amending Act 27 of 1979 w.e.f. 7.7.1979 Taluk Land Board was also empowerred to examine the claim in question. Taluk Land Board, therefore, could rightly go into this question all over again irrespective of the earlier proceedings which culminated up to Supreme Court (CA No. 227/78). 5. The proposition of law laid down that fuel wood supply to the employees cannot be said to be for ancillary purpose, is no longer good law in the light of the decision of the three learned Judges of this Court in Pioneer Rubber Plantation vs. State of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Lords in Arnold and others vs. National Westminster Bank Plc. (1991 (2) AC 93). 8. Report has since been filed by the Cardamom Board. A persual of the report shows that the Cardamom Board has accepted the majority view of the Taluk Land Board as well as the stand of the appellant that Cardamom plantation existed prior to 1964 and, therefore, the Cardamom area was exempted from the provision of the Act. 9. Taluk Land Board has power under sub-section (9A0 of Section 85 to review its own decision. This could be done on the ground that earlier decision had been made due to the failure to purduce relevant data or other particular relating to ownership or possession before it or by collision or fraud or any suppression of material fact . In the present case, there was failure on the part of the appellant to produce relevant data regarding fuel area, rested tea and Cardamom plantation. Mr. P Krishnamurthy, learned senior counsel for the respondent, in reply, made the following submissions: (1) After the decision of the Supreme Court in appeal by the Taluk Land Board (CA 227/78), its jurisdiction was barred on two items, namely fuel area and rested tea area. Reference was made to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the principle of constructive res judicata could be invoked against writ petition filed by the appellant under Article 226 of the Constitution. The appellant had been assessed to sales-tax for the year 1957-58 under Madhya Bharat Sales Tax Act, 1950. He challenged the validity of the order of assessment by a writ petition which was dismissed by the High Court of Madhya Pradesh. Appellant appeal by special leave to this Court was also dismissed. At the hearing of the appeal before this Court, appellant sought to raise two additional points, but he was not been specified in the writ petition filed before the High Court and had not been raised at an early stage. On those points which were not allowed to be raised, the appellant filed another writ petition in the High Court challenging the validity of the same very assessment for the year 1957-58. High Court considered the merits of the additional grounds urged by the appellant but rejected them. Appellant again came to this Court. This Court dismissed the appeal on the ground that principle of constructive res judicata was applicable in the circumstances and referred to its earlier decision in Daryo Ors. vs. The State of U.P. Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could only be deemed to have been heard and described. The first reason, therefore, has absolutely no force . In Y.B. Patil Ors. vs. Y.L. Patil [AIR 1977 SC 392], this Court said that it is well settled that principles of res judicata cn be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. We may refer to two more decisions of the Supreme Court on the question of res judicata and estoppel. In Sunderabai w/o Devrao Deshpande and another vs. Devaji Shankar Deshpande (AIR 1954 SC 82) under terms of an Award by the Arbitrator which was made rule of the Court decree provided that rights of adoption was lost to Gangabai from the very beginning and the adoption of Devaji was held to be invalid and it was declared that the adopted son Devaji was not and could never become entitled to the property belonging to the family of his grand father Devrao. With the object of maintaining peace and goodwill in the family decree provided that Sunderabai widow of Devrao shall pay to Devaji ₹ 8000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court passed in revision, Taluk Land Board could not exercise its powers under sub-section (9) of Section 85. It appeared that because of this statement of law by the High COurt, Act was amended by Act 16 of 1989 and sub-section (9A) of Section 85 was incorporated. Thereafter, a single Judge of the High COurt in Thampi Gounder vs. State of Kerala (1994 (1) KLT 89) held that powers under sub-section (9A) of Section 85 could be exercised notwithstanding any revision of the High COurt under Section 103 arising out of the final orders passed by the Taluk Land Board under sub-sections (5), (7) and (9) of Section 85 and that this would be so even where the order of the Taluk Land Board merged with the order of the High Court. Form 1 under which statements/return is to be filed requires complete details of the plantation as meant in Section 2(44) of the Act. It is to be accompanied with various annexures. The appellant never claimed exemption on the ground of Cardamom plantation existing prior to 1964. It never asked for amendment of the return/statement at any stage of the proceedings. It sought exemption on the ground of the land under the heading 'fuel area'. Once the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erk who was alleged to be doing the work of a cashier. If there is any likelihood of facts o conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact. It seems to us that the later finding must necessarily be in contradiction of the previous determination. There can be no such contradiction if the periods are different and the facts relating to the carrying on of the duties of a cashier are different . Mr. salve strongly relied on the decision of the House of Lords in Aronold Ors. vs. National Westminster Bank Plc. [(1991) 2 AC 93] to submit that the appellant could again raise the plea of 'rested tea area', 'Cardamom plantation' and 'agricultural land interspersed' for adjudication before the Taluk Land Board when it was seized of the matter on remand. He said though issue estoppel constituted a bar to relitigation between the same parties of a decided point, appellants were not estopped to seek redetermination of the issue in the facts and circumstances of the case. He said the first return/statement was filed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances. The House then finally observed. But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter of the two proceedings being identical, than they do in issue estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordship should affirm it to be the law that there may be an exception to issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (explanation to Rule 1) review is not permissible on the ground that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment . Since the appellant never claimed exemption outside the ceiling area on the ground of cardamam plantation the question was never gone into in the earlier proceedings of this Court. This point, therefore, could not be agitated before the Taluk Land Board dealing with the matter on remand as finality attached to the areas under the fuel area and rested tea area for which exemption was not or fully granted. It is, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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