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TMI Blog1998 (11) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... person having land in excess of the ceiling area fixed under the Act or claiming exemption of any land as not falling within the ceiling area at all. Predecessor-in-title of the appellant (South India Tea Estate Company Ltd.) filed return on March 28, 1970 before the Land Board in relation to tea plantation held by it. (Hereinafter when we refer 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 rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also keeping in view the observations made in the judgment. High Court, however, did not interfere with the decision of the Taluk Land Board as regards Land necessary for road, building, factory store, etc. Now the break-up would be as under:- The appeal filed by the State against earlier order dated March 15, 1977 of the High Court came to be decided on 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 contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(44), is exempt from the rigour of the ceiling area. Sub-section (3) of Section 81 empowers the Government, in public interest, to exempt any other land over and above the ceiling area and subject to such restrictions and conditions as it may deem fit to impose. Section 83 prohibits any person from owning or holding or possessing land in excess of the ceiling area. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numbers, if surveyed taluk and village) interspersed within the boundaries of the area cultivated by the person with the crops referred to in section 2(44) and the extent of such lands which the person considers necessary for the protection and efficient management of such cultivation. Taluk Land Board in its order dated July 26, 1980, made after the remand, found that out of 924.01 acres claimed by the appellant 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (earlier claimed as fuel area) 421.88 acres as Cardamom plantation and 302.13 acres as other agricultural land interspersed with other plantation crops (disallowed by the High Court); and 3. 263.63 acres as other agricultural lands interspersed with cardamom crops (remanded by the High Court). During the course of hearing, this Court on July 15, 1985 passed the following order: Without prejudice to the rights and contentions 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 insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re now exempt as cardamom plantation and also as land ancillary to plantation coming within the definition of plantations. In the affidavit dated May 31, 1976 filed by the appellant before the Taluk Land Board, it was mentioned that there were agricultural lands within the boundaries of the tea plantations which were required for the protection and efficient management of plantation. In that, there were also fuel plantations interspersed within the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if in the course of proceedings whether during remand or otherwise, it is found that the area is exempt under any provision of law, any acquisition of that area would be illegal and viod. Proceeding terminate only when there is order under Section 85 of the Act which order had yet not been passed. There can also be no plea of issue estoppel raised by the respondents in the circumstances of the case. Reference in this connection was made to a decision of English House 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 supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for the Cardamom Board to conclude that Cardamom plantation existed prior to 1964 and the report was based on local inspection and queries and without any scientific basis. 3. Taluk Land Board on remand could not examine the claim of the appellant over and above 263.83 acres as exempt on account of other agricultural lands interspersed. In Devilal Modi, Properietor, M/s. Daluram Pannalal Modi vs. Sales Tax Officer Ratlam Ors. [ (1965) 1 SCR 686 ], the lquestion before this Court was whether 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as in the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd under Section 85(5) or Section 85(7) had been subject matter of relvision to the High Court under Section 103 of the Act. These revisions had been heard and disposed of by the High Court. The question was whether Taluk Land Board could exercise power under Section 85(9) in such cases. High Court said that sub-section (9) of Section 85 contemplated that exercise of powers by the Taluk Land Board could be exercised to set aside its order and once the order of the Taluk Land Board had merged with the order of the High 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 Ta ..... X 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. It is settled law that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court came to the correct conclusion. The basic principle underlying the rule of issueestoppel is that the same issue of fact and law must have been determined in the privious litigation. The question then arises : Was it the same issue of fact which was determined in the earlier case? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier. He was a temporary senior accounts clerk 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound out by reasonable diligence for use in the earlier proceedings does not according to tthe law of England, prevent the latter to be re-opened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of actin to which the same issue is relevant one of the parties seeks to re-open that issue. Here also bar is complete to re-litigation but its operation can be thwarted under certain circumstances. The House then finally observed. Butg 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 bettween 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 comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11 of the Code we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold and others vs. national Westminster Bank Plc. (1991 (2) AC 93). Law on res judicata and estoppel is well understood in India and there are sample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, a different if an issue which had been decided in earlier litigation again arises for determination 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 tthe Court is based ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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