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P. Satyanarayana Vs. the Land Reforms Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit. Petn. No. 3482 of 1976
Judge
Reported inAIR1980AP149
ActsCode of Civil Procedure (CPC), 1908 - Sections 114 and 151- Order 47, Rule 1; Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 - Sections 22; Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 - Rule 16
AppellantP. Satyanarayana
RespondentThe Land Reforms Tribunal and ors.
Appellant AdvocateB. Subhashan Reddi, Adv.
Respondent AdvocateGovt. Pleader for Revenue and ;Bhaskara Rao, Adv.
Excerpt:
.....view we have taken, we have no hesitation in holding that the contentions of the learned counsel for the petitioners are untenable and must fail. pratap reddy, learned counsel for the petitioner, however, submits that should our judgment be against him on the main contention, then the tribunal should be directed to give the petitioner a notice before actually seeking to reopen, as the tribunal has failed to do so and, without giving any notice and opportunity, has reopened the case, which on the face of it is violative of the principles of natural justice......the petitioner filed a declaration of his holding as required by section 8 of the andhra pradesh land reforms (ceiling on agricultural holdings) act 1975, hereinafter referred to as 'the act'. in col. (6) of the declaration, he mentioned 5 minor children besides his wife as the members of his family. the tahsildar stated in his verification as per rule 4 (4) of the andhra pradesh land reforms (ceiling on agricultural holdings) rules 1974, that the petitioner's family consists of seven members; and an issue, namely issue no. 7 was framed by the tribunal to the effect , 'whether declarant's family unit consists of seven members?' it appears from the order of the tribunal that in view of the tahsildar, the authorised officer did not dispute the petitioner's averment in this behalf. the.....
Judgment:

Seetharama Reddy, J.

1. Our learned brother Jeevan Reddy, J. before whom this Writ Petition challenging the authority and jurisdiction of the Land Reforms Tribunal to reopen the order passed earlier by it, came up for hearing, thought it proper that there should be an authoritative pronouncement on the question, inasmuch as there is no decision of this Court on the said question and also because there are several such Writ Petition pending for decision before this Court.

2. The facts that led to this writ petition, in brief, are that the petitioner filed a declaration of his holding as required by Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1975, hereinafter referred to as 'the Act'. In col. (6) of the declaration, he mentioned 5 minor children besides his wife as the members of his family. The Tahsildar stated in his verification as per Rule 4 (4) of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules 1974, that the petitioner's family consists of seven members; and an issue, namely issue No. 7 was framed by the Tribunal to the effect , 'Whether declarant's family unit consists of seven members?' It appears from the order of the Tribunal that in view of the Tahsildar, the authorised Officer did not dispute the petitioner's averment in this behalf. The petitioner also deposed on oath that his family unit consists of seven members. In view of the above, the Tribunal held, by its order dated 12-4-1976, that the petitioner's family unit consists of seven members and since he is entitled to an additional 2/5th holding on that account, his holding is within the permissible limit. The said order became final, not having been appealed against. About six months later, the petitioner was served with a notice dated 6-10-1976, impugned herein, intimating the petitioner that the case has been reopened at the instance of the authorised officer since he has raised an objection that the petitioner was not having two of the five children mentioned by him in col. (6) of the declaration. In other words the allegation was that the petitioner has falsely claimed that he was having five children while, in fact, he had only three children. Consequently, the petitioner was directed to adduce evidence in that behalf, failing which he has been informed that the case would be decided on the basis of the material available on record. It is this notice that give rise to this writ petition challenging the said notice as wholly without jurisdiction and incompetent on the ground that the Tribunal has no power to reopen a matter which is once closed finally.

3. In the counter-affidavit, sworn to by the Special Tahsildar (Land Reforms) Mahabubabad (2nd Respondent), it is stated that four months after the declaration of the petitioner was disposed of, a compliant petition was lodged before the Collector, alleging that the petitioner-declarant has cheated the Government by stating that his family consists of seven members while, in fact, it comprised only of five members. Thereupon, the collector directed the Tahsildar. Mahabubabad, to conduct a local inquiry and report. On inquiry, it was found that the petitioner had falsely alleged as having five children while in fact, he was having only three. This was deliberately misrepresented in order to defraud the Government. For that reason, it is stated, the Tribunal issued notice to the parties and the said allegation was sought to be enquired into. The petitioner, without meeting the said allegation on merits, has filed this Writ Petition.

4. The contention of Sri K. Pratap Reddy, learned Counsel for the petitioner, is that the Land Reforms Tribunal has no authority or jurisdiction to reopen or review its own order, as neither the Act nor the Rules framed thereunder confer any such power on the said Authority. For this he relied on the Judgment of this Court dated 7-3-1978 in W. P. No. 1549 of 1977, wherein Ramchandra Raju, J. held:-

'Certainly the Land Reforms Commissioner has no power to give direction to the Land Reforms Tribunal to reopen the case. Since there is no provision made in the Act for reopening of the cases once disposed of by the Land Reforms Tribunal, it has no power to reopen the cases once disposed of.'

The circumstances which led to the aforesaid decision in brief, are that the petitioner, his father and his other two major brothers filed four declarations under Section 8 of the Act. In respect of the four declarations filed by the petitioner, his father and two brothers, the Verification Officer filed a report stating that none of them held any land in excess of the ceiling are. The Land Reforms Tribunal passed orders to that effect in all the four cases and obtained the signature of the petitioner's brother. The Land Reforms Tribunal, 1st respondent therein, found that each of them was holding only land equivalent to 0.7852 Standard Holding which is less than the ceiling area viz. One Standard Holding. The Writ Petition was filed, alleging that the 3rd respondent therein, being inimical towards the petitioner, got an application filed before himself by a third-party stating that the Land Reforms Tribunal and the Verification Officer were in league with the petitioner and when there was excess land, cases were wrongly closed as if there was no excess land. On the basis of that application, the 3rd respondent directed the Commissioner of Land Reforms 2nd respondent therein, to make an inquiry. Thereafter, the 2nd respondent seized the filed from the Land Reforms Tribunal and made an inquiry. The 1st respondent subsequently issued a notice to the petitioner purporting to reopen the inquiry and posting the case for fresh enquiry. It is this order that was challenged.

5. The next case relied on by the learned Counsel is Patel N. Thakershi v. Pradyumansinghji, : AIR1970SC1273 wherein the Supreme Court held:

'It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.'

The case before the Supreme Court arose out of the Saurashtra Land Reforms Act, where under no power to review was conferred.

6. The next case relied upon by the learned Counsel is Rama Chandra v. Beero Pollai AIR 1936 Mad 531 (FB) wherein a Full Bench of the Madras High Court held;

'Generally no court has got a power of revising its own appellate orders nor has a Court the power of review unless specifically conferred on it.'

7. Again, a Full Bench of the Mysore High Court, in Sampu Gowda v. State of Mysore, AIR 1953 Mys 156 (FB) held:

'Review is a remedy to be sought for and applied under special circumstances. The jurisdiction or power to review cannot be assumed or imported in the absence of any specific provision therefor or of even indication of the conditions for the exercise of it.'

8. In Mallappa v. Board of Revenue, A. P., (1966) 1 Andh WR 157) a single Judge of this Court, while dealing with a case under the Madras Estates (Abolition and Conversion into Ryotwari) Act, held:-

'The Board of Revenue once it has passed an order under the proviso to Section 11 of the Madras Estates (Abolition and Conversion into Ryotwari) Act granting patta to the petitioner, it has become functus officio and no power of revision is vested in it and unless it be on grounds of frauds, misrepresentation or other similar grounds, it would not review its own orders.

The order of the Board of Revenue reviewing its previous order of granting patta to the petitioner, is clearly without jurisdiction and must be quashed'

9. The learned Government Pleader, on the other hand cited the following decisions for the rival proposition.

10. In K. B. G. Tilak v. Spl. Tahsildar, ((1978) 2 APLJ (HC) 83), the facts are that the petitioners therein claimed that certain of the properties shown in the declaration were joint family properties and could not be included exclusively in the holding of the 2nd respondent. The Land Reforms Tribunal overruled the objection and computed the same in the holding of the 2nd respondent-declarant. The declarant preferred an appeal impleading his two brothers, petitioners in the case cited, as respondents 2 and 3. In the memorandum of appeal, he, inter alia, urged that certain of those lands were joint family properties in which his two brothers, respondents 2 and 3, had also a share. That appeal was posted for hearing on 20th April, 1977. On that day, neither the appellant nor his advocate was present; nor were the respondents 2 and 3 present either in person or through their Counsel. In the absence of the parties, the Land Reforms Appellate Tribunal disposed of the appeal on merits, partly allowing the same but rejecting the main contention that some of the items included in the holding of the appellant were joint family properties in which the respondents 2 and 3 had a share. The 2nd respondent therein filed I. A. No. 2815 of 1977 for setting aside the ex parte order and for re-hearing the appeal. In that application, he stated that they and their advocate could not be present because their advocate, by some oversight, noted the date of hearing of the appeal as 10-5-1977 instead of 20-4-1977. The Appellate Tribunal, without going into the truth of this assertion and without determining whether there was sufficient cause of non-appearance of the petitioner, dismissed the application on the ground that there is no provision under the Act making applicable all the provisions of the Code of Civil Procedure to the proceedings before the Appellate Tribunal and there is also no provision under the Act or the Rules empowering the Appellate Tribunal to rehear the appeal disposed of on merits. In short, it held that the application for re-hearing the appeal was not maintainable. It is under these circumstances that a Division Bench of this Court after referring to Rule 16 of the Rules framed under the Act and Sec. 20 of the Act, held:

'From a reading of the provisions of the Act and the Rules, it is clear that there is no provision corresponding to O. IX, Rr. 8 and 13, O. XLI, Rr. 17 and 21 of the Civil P. C. declaring the consequences of non-appearance of the parties to the proceedings either in person or though Counsel or an authorised Agent on the date of hearing. Rule 16 (3) however, specifically declares that the Tribunal may regulate the proceedings before it in such manner as it deems fit. At the same time it also declares under Rule 16 (1) that all proceedings before the Tribunals though summary shall be governed as far as may be by the provisions of the Code of Civil Procedure. In other words, if there is no express provision to the contrary under the Act or the Rules, the Tribunals shall follow the provisions of the Code of Civil Procedure. In the absence of any specific provision in the Act and the Rules an in the Civil P. C. in regard to the procedure to be adopted in case of all or any of the parties to the proceedings not being present, the Tribunal may regulate its proceedings in such manner as it deems fit.

However, the Land Reforms Tribunal is enjoined by Section 8 to determine the holding of a declarant and decide whether he holds any land in excess of the ceiling are to which he is entitled under the Act and direct him to surrender such excess. A declarant having filed declaration of his holding cannot thwart the proceedings before the Tribunal by his absence. If in the absence of the declarant, the objector or other parties interested, the Tribunal is held to be precluded from proceeding to compute the total holding of the declarant and determine the excess, if any, held by him and from directing him to surrender the excess holding, the working of the Act would be left at the mercy of the declarants. The purpose of the enactment and the object of the legislature in constituting the Tribunals is obviously to create a machinery to determine the surplus holdings and take over the excess land for distribution in accordance with the provisions of the Act. That object of the enactment must be fulfilled and cannot be made to depend upon the presence or absence of the parties or their Counsel. If O. IX were to be held to apply in its entirety to the proceedings before the Tribunal and O. XLI to the proceedings before the Appellate Tribunal and the declarants were to absent themselves, then in view of O. LX R. 8, the Land Reforms Tribunal shall have to dismiss the proceedings for default and in view of the non-appearance of the appellants the Appellate Tribunal in view of O. XII, C. P. C. may dismiss the appeal for default. It could never have been the intention of the Legislature that the functioning of the Tribunal and the determination of the excess land liable to be surrendered and taken over for distribution should depend upon the appearance or non-appearance of the parties, and that too parties who cannot be expected to be interested in the determination and surrender of the excess holding. The Tribunal could be rendered immobile by un-co-operative declarants and thereby the very purpose of the Act would be defeated. So the non-appearance of the declarants or objectors or any other party interested cannot preclude the Tribunal and the non-appearance of the parties to the appeal cannot preclude the Appellate Tribunal from disposing of the proceedings before it. Rule 16 (5) in fact directs that all the decisions of the Tribunal shall be in writing and set forth the reasons for the same. That implies that the declarations filed before the Land Reforms Tribunal has to be disposed of on merits. So also irrespective of whether the parties appear or absent themselves the Land Reforms Appellate Tribunal has to dispose of the appeal on merits. It cannot summarily dismiss it for default. That is the position having regard to the object and the purpose of the enactment.'

11. It was further held:

'It would appear from the wording of Section 20 (3) also that the Appellate Tribunal is enjoined to dispose of the Appeal on merits and not dismiss it for default. Section 20 (3) lays down that the Appellate Tribunal 'shall pass such orders on the appeal as it deems fit.'

The Division Bench finally held:

'In the instant case, it is seen that on account of the petitioner's Counsel having wrongly noted the date of hearing of the appeal, he did not appear on the date to which the appeal was posted. The facts referred to above and which were not controverted by the other side disclose sufficient cause for non-appearance of the parties at the hearing. The Tribunal, therefore, was in error in rejecting the application on the assumption that it had no jurisdiction to entertain such an application. We hold that the petitioners have shown sufficient cause for their non-appearance on the date of hearing. The ex parte order therefore ought to have been set aside by the Appellate Tribunal.'

Sir Williams R. Anson, in Principles of the English Law of Contract (Twenty First Edition) at page 237 observed:

'......... it is equity's duty to prevent abuse of confidence and to see that no person retains any benefits arising from his own fraud or wrongful Act.

The next case relied on by the learned Government Pleader is Guddappa v. Balaji, AIR 1941 Bom 274 (FB) wherein a Full Bench of the Bombay High Court held:

I. In all cases of unilateral or bilateral fraud which has not been successfully effected, either party can repudiate the fraudulent transaction and can recover or maintain his possession by proving his real title.

II. In cases where fraud is accomplished...............

(1) where only one party acts fraudulently, he cannot be allowed, either as plaintiff or as defendant, to plead his fraud, on the principle that no man shall be heard to plead his own fraud;

(2) where both parties are equally fraudulent, the court will refuse to enforce the fraudulent transaction on the principles that where each party is equally in fault, the law favours him who is actually in possession, and will give relief to neither, and that a right of action cannot arise not of fraud.............'

In Baidyanath Dubey v. Deonandan Singh, (1968 S. C. D. 275) it is held:

'It cannot be doubted that a Court has inherent powers to recall orders obtained by practising fraud on it, at the instance of a party to the proceedings. There is no question of Court being functus officio because the Court retains the jurisdiction to recall such orders.'

The learned Government Pleader, therefore, submitted that Courts and Tribunals have inherent jurisdiction in some special cases to revise their own orders, notwithstanding the fact that there is no statutory provision conferring explicitly the said power, and particularly so when fraud is played upon the Court.

12. The learned Counsel for the petitioner, while submitting his reply, contended that the Division Bench decision of this Court in K. B. G. Tilak v. Spl. Tahsildar (supra) will have to be confined to with reference to re-hearing and re-opening only, and it does not postulate a case for review, and that inasmuch as the case before us pertains to a case of review only, the Division Bench case has no application. He further submitted that the Division Bench decision, in so far as it seeks to rely on Rule 16 for concluding that 'all proceedings before the Tribunal or the Appellate Tribunal shall be summary and shall be governed, as far as may be, by the provisions of the Civil P. C.', is incorrect, as the said provision is repugnant to Section 22 (1) of the Act which says:-

'The Appellate Tribunal, the Tribunal, the Revenue Divisional Officer and any officer authorised by the Tribunal or the Revenue Divisional Officer, to exercise any power under this Act shall have the same powers as are vested in a civil court under the Civil P. C. 1908 for summoning and enforcing the attendance of any person and examining him on oath and for requiring production of any document.'

So, the learned Counsel submits, the Rule cannot seek to enlarge the scope as contemplated by the Section, nor can it run counter to or in excess of what the Section itself lays down, and therefore, Rule 16 is ultra vires. It is further submitted that it is now well settled that the Rule cannot be repugnant to the provisions of the Section. For this, he relied on the decision of the Supreme Court in I-T. Commr., Madras v. S. Chenniappa, : [1969]74ITR41(SC) wherein it is held:-

'Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of R. 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act.'

For the proposition that the case could not be reopened on the mere ground that either subsequent legislation or the decision of a Court changed the position, the learned Counsel for the petitioner relied on the decisions in Gyanaji v. Ningappa, AIR 1928 Bom 308; Board of Revenue v. P. K. S. Akbar Sahib, : AIR1973Ker285 and Raja Shatrunjit v. Mohd. A. Azim Khan, : AIR1971SC1474 .

13. On a conspectus of case law, it becomes quite evident that a Court or Tribunal cannot review its own order or Judgment unless there is a statutory provision providing for the same. However, a Court or Tribunal has inherent powers to recall orders obtained by practising fraud on it. There is no question of the Court becoming functus officio, because it retains the jurisdiction to recall such orders. It inheres in a Court or Tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds. We may, however, make it clear that the decision of the Division Bench in K. B. G. Tilak v. Spl. Tahsildar ((1978) 2 APLJ (HC) 83) is confined to a case of reopening in a case where either it was dismissed for default or a decision was rendered ex parte. This decision, as it is peculiarly confined to the facts and circumstances thereof, cannot, therefore, be of any assistance in so far as the case on hand is concerned. We, therefore, reiterate that a Court or Tribunal can review its own order or judgment only where the party, by way of mis-representation, has played fraud upon the Court and not in other cases.

14. In the view we have taken, we have no hesitation in holding that the contentions of the learned Counsel for the petitioners are untenable and must fail. It is, however, needless for us to go into the question as to whether Rule 16 is repugnant of Section 22 of the Act as contended by the learned Counsel for the petitioner, in view of the decision arrived at by us.

15. Sri K. Pratap Reddy, learned Counsel for the petitioner, however, submits that should our judgment be against him on the main contention, then the Tribunal should be directed to give the petitioner a notice before actually seeking to reopen, as the Tribunal has failed to do so and, without giving any notice and opportunity, has reopened the case, which on the face of it is violative of the principles of natural justice. We see sufficient force in this submission and we direct the 1st respondent (Land Reforms Tribunal, Mahabubabad) to give a notice to the petitioner before seeking to reopen the case and proceed according to law. With these observations, we dismiss the Writ Petition No costs, Advocate's fee Rs. 200/-

16. Petition dismissed.


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