Janaki Amma v. State Of Kerala

1. In this revision under S. 103 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act XXXV of 1969, hereinafter called the Act, the important question of law involved is whether the legal heirs of one who was, as on 1-1-1970, the date notified under S. 83 of the Act, an adult unmarried person holding land in excess of the ceiling limit specified under S. 82 of the Act, are under a legal liability, on his death, after the filing of the statement under S. 85(2) of the Act, but before the passing of the vesting order under S. 86(1) of the Act, to surrender the excess land as might have been deter-mined had he lived till such time as the Taluk Land Board could have determined the extent and identity of the excess land, and passed an order vesting it in the Government. The Taluk Land Board has, by casting the burden on the legal heirs, in effect, answered the question in the affirmative, though this question of law, as such, was not specifically raised before it. Revision petitioner No. 1 is one of the legal heirs of the person who had filed the statement under S. 85(2), hereinafter, for the sake of convenience, referred to as the ‘declarant’. Revision petitioners Nos. 2 and 3 are persons who took assignment from the declarant 19 cents of land included in Part-D of the final order for surrender to the Government. Sri O.V Radhakrishnan, the counsel for the revision petitioners, submitted that the inhibition under S. 83 of the Act againt holding land in excess of the ceiling area is against a person, and with the death of that person that disability ceases to exist. According to him, the very caption of Chapter ill (which comprises Ss. 81 to 98) of the Act indicates that the scheme of the Act with respect to the ceiling provisions is to impose restriction on ownership and possession of land in excess of the ceiling area held by persons, and to distribute the excess land available among the landless. He also emphasised that there is no provision in the whole of Chapter III suggesting any disability cast on the land owned by a person who was holding land in excess of the ceiling area. In this context the following observation of Narayana Pillai J. in Idicula v. Taluk Land Board (1976 KLT. 550) has been cited by him:

“…The ceiling limit fixed in S. 83 of the Act is as on 1-1-1970. It is open to persons holding lands within the ceiling limit to make valid transfers of them after 1-1-1970. As a result of such, transfers there was the possibility of lands in excess of the ceiling area getting accumulated in the hands of a new class of people after 1-1-1970 also. That is sought to be prevented by S. 87 of the Act. These provisions show that merely because a land was not excess land at some time in the past or in the possession of a particular person it need not be so on a later occasion or in the possession of another. Even in the possession of the same person it can be excess land on a later occasion……To accept the argument of counsel for the revision petitioner would be to hold that if at some time in the pass a land was not excess land in the possession of one person it should remain exempted from the operation of the ceiling provisions of the Act for all time to come. That is not what is intended by and provided for in the Act.”

2. He proceeded to argue that this decision would indicate that the excess land is corelated to a person, and what is excess land in the hands of one person may not be excess land in the hands of another; in other words, in accordance with the scheme of the Chapter, there is no such class of land as excess land absolutely without reference to a person in relation to whom it is excess.

3. Sri Radhkrishnan laid great emphasis on the point that till a vesting order is passed there is no divesting of the ownership of the land held by the declarant, and therefore, he died as the full owner of such land so much so that his legal heirs became the full owners of the lands left behind him without any disability under the ceiling provisions of the Act attached thereto. It is also submitted by him that acquisition by inheritance under the general or personal law stands on a totally different footing from the acquisition under various modes of transfer inter vivos contemplated under S. 84 of the Act. While transfers hit by S. 84 are to be ignored for the purpose of the ceiling provisions, there is no provision in the Act which attaches invalidity to land obtained on devolution.

4. The learned Advocate General, appearing for the State, submitted that the most important point to be noticed is that the scheme of the ceiling provisions in Chapter III of the Act is such that the liability of the person concerned to surrender excess land crystalises as on 1-1-1970, the date notified under S. 83 of the Act, thereafter it is only a question of determining the extent and identity of the land to be surrendered, and processual delay cannot be instrumental in destroying the avowed object and purpose of the Act. A passage from the judgment of Subramonian Poti J. in Arya Antharjanam v. State of Kerala (1976 KLT. 446) (at page 447, paragraph 3) is relied on by him:

“It may also be seen from S. 83 as well as S. 85(1) of the Act that the obligation to surrender excess land is with regard to excess referred to in S. 83. Therefore, if on 1-1-1970 any person holds land in excess of the ceiling area the obligation to surrender is incurred and that is what is to be determined The determination under S. 86(1) of the extent and other particulars of the lands to be surrendered under S. 85 is the excess as on 1-1-1970. Therefore, the death of the declarent makes no difference in the obligation to surrender excess land.”

5. According to the learned Advocate General, a combined reading of Ss. 83, 85(1), 85(8) and 85(9) would lead to the conclusion that it would be more reasonable to hold that it is the land that is proceeded against, not the person. He also pointed out that the Legislature has, while enacting S. 85(1), guardedly employed the expression “such land shall be surrendered” avoiding to state as to who was liable to surrender the land. According to him, the use of passive voice in the section, instead of stating that the person who filed the statement under S. 85(2) shall surrender the excess land is purposeful and pregnant with meaning; the Legislature wanted to emphasise that when once the declarant had incurred an obligation to surrender the excess land held be him as on 1-1-1970, irrespective of the person in whose hand it is found it has to be surrendered as required by Ss. 85(1) and 86(2) of the Act. The learned Advocate General has also made reference to Rules 10, 12(2), 13, 17 and 19 of the Kerala Land Reforms (Celing) Rules, 1970. According to him, Rule 10 only relates to the preparation of the draft statement of the lands to be surrendered without any emphasis being given to the person who is to make the surrender; Rule 12(2) is comprehensive enough to bring in the legal heirs also in case the declarant dies; Rule 13 deals with the enquiry to be made in connection with the determination of the extent and identity of the lands to be surrendered, without mention being made as to who is to surrender the land so determined; Rule 17 deals with demand for surrender, and R. 19 deals with the manner of surrender and taking possession and assumption of ownership. In all these Rules, it is submitted by the learned Advocate General, the emphasis is on the land to be surrendered, and the reference is only to the pet son who is bound to make the surrender without any specific reference being made to the person who filed the statement under S. 85(2) or under S. 85A(1), as the case may be to support his argument that when a liability was cast on a person to surrender excess land, to effectuate the intention of the Legislature, in the absence of special procedure being laid down to cope up with the situation on the death of the person, legal heirs should be construed to be the persons liable to make the surrender of the excess land, reliance was also placed by the learned Advocate General on the decision of the Supreme Court in Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd. ((1972) 2 SCC 560 : AIR. 1972 SC. 2563) wherein (in paragraph 31) it is observed as follows:—

“The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of S. 4 of the Act read with Rule 10-A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of Rule 10-A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: ‘Expressio unius est exclusio alterius.’ But, as was pointed out by Wills, J., in Colquhoun v. Brooks, (1888) 21 QBD 52 at p. 62, this maxim ‘is often a valuable servant, but a dangerous master……’. The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative in tent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes an assessment obligatory before goods are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no ‘assessment’, as it is understood in law, took place at all. On the other hand. Rule 10A indicates that there are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee. A case like the one before us falls more properly within the residuary class unforeseen cases. We think that, from the provisions of S. 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred.”

6. The following passage from (1976) 3 Weekly Law Reports, 235 (House of Lords-Attorney-General for Northern Ireland's Reference No. 1 of 1975) is also relied on by the learned Advocate General (at pages 240 and 241):—

“Where a statute confers upon an existing court of law a new or extended jurisdiction and does not itself contain detailed provisions as to the practice and procedure to be followed by the court when exercising the new or extended jurisdiction, there is a necessary implication that power to regulate that practice and procedure must rest somewhere: either in the court itself as part of its inherent powers or in some separately constituted rule-making authority. S. 14 of the Interpretation Act 1889 provides that where the expression ‘rules of court’ is used in relation to any court it means ‘rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court;’ and the second paragraph of the same section provides:

‘The power of the said authority to make rules of court as above defined shall include a power to make rules of court for the purpose of any Act passed after the commencement of this Act, and directing or authorising anything to be done by rules of court.’”

7. Replying to the argument of the learned Advocate General, Sri Radhakrishnan submitted that it would not be inconsistent with the scheme of the Act, if this Court upholds the plea of the first revision petitioner that as a legal heir of the deceased declarant she is not in law bound to surrender any portion of the land held by him during his lifetime, and which devolved on her on his death as one of his legal heirs, as the hypothetical question whether the declarant would not have been under such a legal obligation had he lived up to such time, as the Taluk Land Board could have passed a vesting order under section 86(1) of the Act, has no relevance when the Legislature did not choose to cast any such liability on the legal heirs of the deceased declarant either in express terms or by necessary implication. He reiterated his contention that the inhibition under S. 83 is personal to the person holding excess land, and the disability is not attached to the land held by such person.

8. There appears to be force in the line of reasoning advanced by Sri Radhakrishnan. It is true, as argued by the learned Advocate General, and as held by Poti J. in Arya Antharjanam v. State of Kerala (1976 KLT. 446) that the obligation of the person holding land in excess of the ceiling area to surrender such excess land crystalises as on 1-1-1970, the date notified under S. 83 of the Act. There could be no doubt that if ultimately a vesting order under S. 86(1) was passed, specifying the extent and identity of the land to be surrendered by the declarant, the Taluk Land Board would have taken possession of such land. But the question is as to what happens to his personal liability in case he dies before the passing of the order under S. 86(1) by the Taluk Land Board, and the surplus land thus getting Vested in the Government. It is to be noticed that before the passing of the order under S. 86(1) of the Act the surplus land in the hands of the declarant does not get vested in the Government. So, the passing of the order under S. 86(1) is of paramount importance, being a condition precedent to the surplus land getting vested in the Government. If, without an order under S. 86(1) determining the extent and identity of the land to be surrendered under S. 85 of the Act, the land will not get vested in the Government, will and can there be a liability on the part of the legal heirs of the deceased to surrender land under S. 86(2) of the Act when there was no such determination during the lifetime of the Declarant?

9. The learned Advocate General sought to justify his stand placing reliance on the wording of S. 85(1) which is couched in the passive voice: “such excess land shall be surrendered as hereinafter provided” without specifying who exactly is to surrender the land. It is also pointed out that S. 86(1) refers only to and to be surrendered, without mentioning as to who is to surrender, and S. 86(2) lays down that on receipt of the order under S. 86(1) such person shall make the surrender demanded. The point attempted to be made out is that the emphasis in both Ss. 85(1) and 86(1), is to the excess land held as on the notified date, not to the person who held such excess land.

10. On a careful consideration of the relevant provisions of Chapter III it is difficult to accept this argument advanced by the learned Advocate General. Under Ss. 85(2) and S. 85A(1) of the Act it is the person who owns or holds land in excess of the ceiling area that has to file the statement giving the details of the land held by him; and the legal heirs of a deceased person, in the scheme of the Act, and for obvious reasons, do not come into the picture at all. The learned Advocate General would contend for the position that the expression “other person” in clause (d) of S. 85(2A) is comprehensive enough to include therein the legal heirs of the deceased person who held excess land. This, in my view, cannot be accepted. The expression “any other person” used in S. 85(2A) has to be read and understood along with S. 82(1), particularly clause (d) thereof. It will be too much to say that “any person competent to act for such person” means any person competent to act for a dead person, particularly in the context that there is no reference to the estate of a deceased person. There is nothing in sub-sections (3), (3A) and (4) of S. 85 to suggest that any liability in the course of the proceedings is cast on any person other than the person who held excess land. S. 85(5) is of significance in as much as it makes clear that it is the statement which relales to the person who holds excess land that has to be verified; it is with reference to that statement that particulars have to be gathered, and orders passed determining the extent and identity of the land to be surrendered. Sub-section (6) lays down that in determining the identity of the land to be surrendered the choice indicated in the statement under S. 85(2) or S. 85(3A) shall, as far as be, accepted. Sub-section (7) of S. 85 lays down the procedure to deal with the situation where any person fails to file statement specified under sub-sections (2) or (3A) of S. 85 of the Act.

11. ‘Interested person’ to which reference is made in the sections and the ceiling rules is a person different from the person who is to surrender the land. S. 85(8) lays down—

‘Where the Taluk Land Board determines the extent of the land to be surrendered by any person without hearing any person interested, such person may, within sixty days from the date of such determination, apply to the Taluk Land Board to set aside the order and, if he satisfies the Taluk Land Board that he was prevented by any sufficient cause from appearing before the Taluk Land Board it shall set aside the order and shall proceed under sub-section (5) or sub-section (7), as the case may be.”

(Emphasis supplied)

12. It is obvious that “any interested person” following “any person” certainly is a person other than the person who is to surrender the land, as otherwise the expression that would have been used would have read “without hearing such person” instead of using the expression “any person interested”. “Such person” referred to thereafter is “any person interested”.

13. What happens to the excess land held by an adult unmarried person who dies before he did, or was required to, file a statement under S. 85(2) of the Act, and what happens to the proceedings initiated against an adult unmarried person by the Taluk Land Board in pursuance of the statement filed by him under S. 85(2) on his death? These are pertinent questions which we have to tackle. As far as the first question is concerned, the legal liability to file statement under S. 85(2) arises only in the case of a person who held land in excess of the ceiling area on 1-1-1970, the date notified under S. 83, and that person having died, there is no liability on the person on whom the land devolves on his death, as the person who inherits the land was not holding that land on 1-1-1970 which means he could not be called upon to file a statement under S. 85(2). S. 87 of the Act is intended to meet the situation arising out of acquisition of land by any person after the date notified under S. 83 of the Act. Under that section any person acquiring land by inheritance after the date of notification under S. 83 shall be liable to surrender the excess land held by him. The liability of the person who acquires the land by devolution may not always be the same as that of the person who died. For instance, take an adult unmarried person having seven standard acres equivalent to 7 ordinary acres. He was bound to surrender, had he lived, an extent of 1 standard acre, as the ceiling limit with respect to him would be five standard acres, so however that it cannot be less than six ordinary acres, which in that case would be six standard acres. If it devolves entirely on another adult unmarried person who was himself holding 4 standard acres equal to four ordinary acres, the person who inherited the property having an aggregate extent of eleven standard acres, out of which he would be entitled to retain within his ceiling area six standard acres (to make it the minimum of six ordinary acres, though, otherwise, it would have been five standard acres), will be liable to surrender five standard acres. As Narayana Pillai J., has pointed out in Idicula v. Taluk Land Board (1976 KLT. 550), what is not surplus land in the hands of one, may become surplus in the hands of another. In other words, excess land is a concept corelated to the person who owns or holds it.

14. As far as the second question is concerned, there is no provision in the Act for the continuation of the proceeding on the death of the person, who filed the statement under S 85(2) of the Act; the proceeding lapses on his death. The learned Advocate General submitted that there is no warrant for the conclusion that the proceeding comes to an abrupt end once the declarant dies. It is his argument that rule 12(2) of the Kerala Land Reforms (Ceiling) Rules, 1970, provides for the issue of notice to all interested parties, and the legal heirs of the deceased declarant also being interested parties, the proceedings could be continued in their presence. I do not think that this view is correct. The notice to the person who filed the statement under S. 85(2) or S. 85A(1) is what is contemplated in rule 12(1). What is contemplated in rule 12(2) is an additional obligation to give notice also to interested persons, other than the person who filed statement under S. 85(2) or S. 85A(1); and there is no reason to hold that it was intended to be a substitute for notices to the person who filed the statement under S. 85(2) or S. 85A(1) of the Act. This is evident from other provisions of the Act wherein also notice to interested parties is directed to be issued.

15. In the absence of specific provision in the Act (Land Reforms Act) which is a self contained special enactment, the procedure adopted by the Civil Court under Order XXII of the Code of Civil Procedure cannot be resorted to by the Taluk Land Board. The Land Board's power to invoke the provisions of the Code of Civil Procedure is limited to matters specified in clauses (a) to (e) of sub-section (1) of S. 101 of the Act, read with rule 91 of the Kerala Land Reforms (Tenancy) Rules, 1970. In this context it will be useful to refer to Rule 92 of the said rules which deals with powers of Land Tribunal. Sub-rule (3) thereof reads as follows:—

“The Land Tribunal shall also have the power to add as parties the legal representatives of a deceased party in any proceedings pending before it and the provisions of Order XXII of the First Schedule of the Code of Civil Procedure, 1908, shall, as far as may be, apply to the proceedings for impleading the legal representatives.”

16. No such provision is seen to have been made in so far as the proceedings before the Taluk Land Board are concerned. It cannot be that the failure to incorporate a provision similar to rule 92 in the Rules with respect to the Taluk Land Board is a matter of accidental omission. In this context we will, do well to remember that even in the case of Land Tribunals, the power under rule 92 is restricted to implead the legal representatives of the deceased party without giving a blanket right to implead any proper or necessary party to the proceedings. This conscious omission to confer the power of impleading the legal representatives of the deceased party, in contrast with the position of the Land Tribunals in this regard under rule 92, is a strong circumstance to hold that the Legislature appears to have intended that there was no need to continue the proceedings, substituting in the place of the declarant his legal heirs.

17. The rationale behind the decisions of the Division Bench of the Bombay High Court in Dadarao v. State of Maharashtra (AIR. 1970 Bombay 144) and the Supreme Court in Ebrahim Aboobaker v. Tek Chand (AIR. 1953 SC. 298) lends support to the view I am inclined to hold on the point in dispute here. Considering, in essence, almost the identical provisions contained in the Maharashtra Agricultural Lands (Ceiling on Holdings) Act (27 of 1961), the Bombay High Court, inter alia held as follows (Pages 153 and 154, paragraph 19):—

“…….The position, therefore, that emerges is that where a holder of property dies after 26-1-1962 and before any declaration is made by the Collector under S. 21 of the Ceiling Act, the heirs of the legatees are under an obligation to file a return in respect of the property which they may already held as on 26-1-1962 and which they may get on the death of the deceased either by succession or under a will if these together are in excess of the ceiling area and it is only with respect to such property that the surplus has to be found. In such cases, the surplus cannot be found with respect to the property which the deceased holder held on 26-1-1962 and would have held on the date of the declaration had he been alive on that date.”

18. 26-1-1962 is the appointed day for the purpose of the provisions under the Maharashtra Act corresponding to the date notified under S. 83 of the Act (Kerala Land Reforms Act) The following observation in paragraph 14 of the said judgment at page 150) also would be relevant for our purpose:

“………If that person dies or ceases to be in existence after the return is filed, then the determination of the ceiling area to be retained by the holder cannot be with respect to that ‘person’ because a dead person cannot hold or retain any property. There is no provision in the Ceiling Act for substitution of the legal representatives of the deceased holder who files a return or dies after 26-1-1962 so that the legal representatives would step into the shoes of the deceased holder. The vesting of the property cannot remain in abeyance and as such as the holder dies before the vesting in the State Government takes place, the property which he held must pass to his heirs or if there is a ‘will’ to his legatees and after such passing of the property the heirs or the legatees take the property in their own rights either as heirs or legatees and do not simply step into the shoes of the deceased holder. The Ceiling Act nowhere makes a provision that the ceiling is to be determined as on the state of affairs existing on 26-1-1962 even if the holder who was alive on 26-1-1962 dies after that date. In the absence of any such provision, it must be taken that the Ceiling Act contemplates ‘a person’ who is alive not only on the date 26-1-1962, the appointed day, but at the time of the filing of the return and till the date of the declaration made by the Collector under S. 21 of the Ceiling Act.”

19. In the Supreme Court case cited above, the crucial question that had fallen for decision was whether a person could be declared ‘evacuee’ after his death, and whether his properties, which, upon his death, vested in his heirs under the Mohammedan Law could be declared ‘evacuee properties’. The terms ‘evacuee’ and ‘evacuee property’ are respectively defined in Ss. 2(d) and 2(f) of the Administration of Evacuee Property Act (Act 31 of 1950). S. 7 refers to the notification of the evacuee property. It lays down:

“(1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.”

20. The relevant portion of S. 8 of the said Act reads as follows:—

“(1) Any property declared to be evacuee property under S. 7 shall be deemed to have vested in the Custodian for the State—

(a) in the case of property of an evacuee as defined in sub-cl. (1) of cl. (d) of S. 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India.”

21. One Aboobakar Abdul Rehman died, pending proceedings under the Administration of Evacuee Property Act for declaring him an ‘evacuee’, and his properties ‘evacuee properties’. Ebrahim Aboobaker and Hawabai Aboobaker, two of his legal heirs, challenged the jurisdiction of the Custodian General of Evacuee Property to continue the proceedings against them. Their contention was that the proceedings had abated on their father's death and the properties had vested in specific shares in his heirs, including them, under the Mohammedan Law. The reasoning behind their argument was that the said properties did not fall within the definition of ‘evacuee property’ at any time after the death of their father, and as such the Custodian General had no jurisdiction to declare the properties to be ‘evacuee properties’ the deceased had no right, title or interest in the properties after his death; nor were the said properties acquired by his heirs by any mode of transfer. On a consideration of the above contentions, in the course of the judgment, Ghulam Hasan J., who spoke for the Supreme Court in the above case, held that the property which is declared to vest in the Government must be one in which an ‘evacuee’ had any right or interest, but the deceased had no right or interest after his death, as his properties vested in his legal heirs; and that the legal heirs had not obtained the properties from the ‘evacuee’ (their father) by any mode of transfer. To would be advantageous to quote paragraphs 17 and 20 of the judgment (at page 302):

“17. Reading Ss. 7 and 8 together, it appears that the Custodian gets ‘dominion over’ the property only after the declaration is made. The declaration follows upon the inquiry made under S. 7, but until the proceedings is taken under S. 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property? If the cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry under S. 7 is a condition precedent to the making of a declaration under S. 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion.”

22. In paragraph 20 the Supreme Court went on to add as follows:—

“There is no provision in the Act that after a man is dead, his property can be declared evacuee property. If such a provision had been made, then the vesting contemplated in S. 8 of the Act would have by its statutory force displaced the vesting of the property under the Mohammedan law in the heirs after death. It is a well recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the devolution is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts………”

23. The learned Advocate General submitted that the decision of the Supreme Court has no application to the present case, as the following distinctions could be drawn between the Act (Kerala Land Reforms Act) and the Administration of Evacuee Property Act:—

(i) There is no provision in the Act (the Kerala Land Reforms Act) that the proceedings are to be against a living person;

(ii) There is no provision in the Administration of Evacuee Property Act that notwithstanding the death of the person proposed to be declared evacuee, the proceedings will continue;

(iii) in the Administration of Evacuee Property Act an inquiry was a condition precedent to the declaration that the property is an evacuee property; and

(iv) the doctrine of relation back is not made applicable in the case of the relevant provisions in the Administration of Evacuee Property Act.

24. Sri Radhakrishnan, on the other hand, has submitted that the distinctions sought to be established are too superficial, and they lack in substance. As far as the first point is concerned, the counsel submitted that in regard to the Administration of Evacuee Property Act also, it is by interpreting the relevant provisions, which are almost identical with the similar provisions in the Act (Kerala Land Reforms Act) that the Supreme Court came to the conclusion that the proceedings are intended to be against living persons, not because it has been so specifically stated in the Administration of Evacuee Property Act itself. As far as the second point is concerned, he submitted that in the Act (Kerala Land Reforms Act) also there is no provision to continue proceedings against a person having surplus land after his death. On the third point his contention is that the provisions of S. 85 of the Act (Kerala Land Reforms Act) clearly indicate that an enquiry is a condition precedent to the determination of the surplus land; and regarding the last point he submitted that the doctrine of relation back has no relevance, as without a declaration no question of relation back arises, and it was so held by the Supreme Court while construing the relevant provisions in the Administration of Evacuee Property Act wherein there is a provision that once the declaration is made it shall retrospectively take effect from the date on which the person concerned shall be deemed to be an evacuee.

25. With reference to the decision of the Supreme Court in Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd. ((1972) 2 SCC 560 : AIR. 1972 SC. 2563) Sri Radhakrishnan submitted that it is for the reason that when a demand is made in exercise of the residuary power under Rule 10A, and the demand is questioned by the assessee, an assessment necessarily will have to be made in accordance with Rule 10, that the Supreme Court held that to effectuate the object of the legislation the procedure laid down in Rule 10 could be adopted in the absence of any special provision laid down for the collection of the amount demanded under Rule 10A. He also submitted that the passage quoted from (1976) 3 Weekly Law Reports, 235 (House of Lords) does not have much relevance to the facts of the present case, as it is not a case of want of detailed provision in the Act; but the legislative intent, as could be gathered from the scheme of Chapter III, is that on the death of the declarant his legal heirs cannot be proceeded against for the liability personally cast on the declarant. On a consideration of all the relevant provisions of the Act I am of the view that the observations made by the Supreme Court in Assistant Collector of Central Excises v. National Tobacco Co. of India Ltd. ((1972) 2 SCC 560 : AIR. 1972 SC. 2563) and by the House of Lords in (1976) 3 Weekly Law Reports, 235 have no application to the legal question involved in the present case.

26. Having found, on a reading of Ss. 83, 85(1) and 86(2) of the Act, that the liability to surrender excess land is that of the person who filed the statement under Ss. 85(2) or 85A(1) of the Act, as the case may be, on the vesting order being passed under S. 86(1), and in as much as there is no provision in the Act for continuation of the proceedings initiated against the person who filed the statement under the provisions referred to above on the death of such person, I hold that the first revision petitioner is under no legal obligation to account for the surplus land, if any, held by the deceased declarant, and her liability, if any, is confined to what is provided for under S. 87 of the Act. Even assuming that the omission to provide in the Act and the Rules for the continuation of the proceedings after the death of the person who filed the statement under Ss. 85(2) or 85A(1), is a case of casus omissus it is for the Legislature to rectify such defect or lacuna, if any, not for the Courts to repair it by judicial decisions. The Courts are expected to proceed on the assumption that the Legislature is an ideal person and does not make mistakes, and that there is no mistake in an Act passed by the Legislature.

27. In the result, the revision is allowed and the impugned order is set aside without prejudice to the right of the Taluk Land Board to proceed against any of the legal heirs of the deceased declarant if there is reason for doing so, and without considering the merits of the various other contentions raised in the revision petition to attack the correctness of the order. In the circumstances of the case there will be no order as to costs. A carbon copy of this will be given to the Government Pleader free of charge and to the counsel for the revision petitioners on usual terms if applied for in that behalf.

28. Allowed.