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Krishna Pillai Sukumara Pillai Vs. Krishnan Velayudhan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 586 of 1978
Judge
Reported inAIR1985Ker40
ActsKerala Land Reforms Act, 1964 - Sections 4A(1), 13A(1) and 13A(3)
AppellantKrishna Pillai Sukumara Pillai
RespondentKrishnan Velayudhan and anr.
Appellant Advocate V. Vyasan Poti and; N. Sugathan, Advs.
Respondent Advocate K.S. Rajamony, Adv.
DispositionRevision allowed
Cases ReferredHindustan Construction Co. Ltd. v. G. K. Patankar
Excerpt:
.....application for restoration filed under section 13a (1) - order making transfer of possession illegal - extension of time given to effect illegal transfer untenable and set aside. - - 1153 of 1972 was filed on 2-8-1972. the appellate authority passed an order of stay of all further proceedings on 16-8-1972 and ultimately dismissed the appeal itself on 2-6-1973. the 1st respondent had failed to comply with the direction of the land tribunal to deposit the compensation due to the petitioner within one month from the date of the tribunal's order on 20-6-1972. an application, i. 3. counsel for the petitioner submits that the appellate authority has no jurisdiction to extend the time for deposit, the appellate jurisdiction in matters like this cannot extend beyond the jurisdiction of..........('amendment) act. 35 of 1969, the 1st respondent applied as per o. a. no. 152 of 1970 to the land tribunal, quilon for restoration of possession of the property delivered to the petitioner on 13-1-1969 alleging that he is a deemed tenant under section 4(1)(a) of the land reforms act as amended and is hence entitled to restoration of possession of the holding under section 13a of the act. the land tribunal as per its order dated 20-6-1972 allowed restoration on condition that the 1st respondent deposits compensation fixed at rs. 1,834.31 for payment to the petitioner-decreeholder within one month from the date of the order. the petitioner filed o. p. no. 3047 of 1972 before this court against the order of the land tribunal and obtained a stay of all further proceedings on 27-6-1972......
Judgment:

Balakrishna Menon, J.

1. This revision was referred to a Full Bench for decision on the legality of the order of the Appellate Authority (Land Reforms), Alleppey, condoning the delay in making the requisite deposit under Sub-section (3) of Section 13A of the Kerala Land Reforms Act, for short 'the Act'.

2. The facts of the case are not in dispute. The petitioner obtained a decree against the 1st respondent in O. Section No. 734 of 1967 of the Munsiff's Court, Neyyattinkara for redemption of a mortgage and for recovery of possession of the suit property. In execution of the decree the petitioner got delivery of the property on 31-1-1969. After the commencement of the Kerala Land Reforms ('Amendment) Act. 35 of 1969, the 1st respondent applied as per O. A. No. 152 of 1970 to the Land Tribunal, Quilon for restoration of possession of the property delivered to the petitioner on 13-1-1969 alleging that he is a deemed tenant under Section 4(1)(a) of the Land Reforms Act as amended and is hence entitled to restoration of possession of the holding under Section 13A of the Act. The Land Tribunal as per its order dated 20-6-1972 allowed restoration on condition that the 1st respondent deposits compensation fixed at Rs. 1,834.31 for payment to the petitioner-decreeholder within one month from the date of the order. The petitioner filed O. P. No. 3047 of 1972 before this Court against the order of the Land Tribunal and obtained a stay of all further proceedings on 27-6-1972. The O. P. itself was dismissed on 30-8-1972 for the reason of the pendency of an appeal by the petitioner before the Appellate Authority (Land Reforms), Alleppey. The appeal A. A. 1153 of 1972 was filed on 2-8-1972. The Appellate Authority passed an order of stay of all further proceedings on 16-8-1972 and ultimately dismissed the appeal itself on 2-6-1973. The 1st respondent had failed to comply with the direction of the Land Tribunal to deposit the compensation due to the petitioner within one month from the date of the Tribunal's order on 20-6-1972. An application, I. A. No. 62 of 1973, was filed before the Land Tribunal on 13-7-1973 for extension of time to deposit the amount. The amount' was deposited only on 17-7-1973, one month and 15 days after the order of the Appellate Authority dismissing the appeal. The Land Tribunal on 27-12-1973 allowed LA. No. 62 of 1973 and condoned the delay in depositing the amount. The petitioner filed A. A. No, 382 of 1974 before the Appellate Authority against the order of the Land Tribunal in 1. A. No. 62 of 1973. The Appellate Authority on 28-5-1977 allowed the appeal and dismissed the application for condonation of delay on the ground that the Land Tribunal has no jurisdiction to extend the time fixed for deposit under Sub-section (3) of Section 13A of the Act. Thereafter on 25-6-1977 the 1st respondent as per LA. No. 927 of 1977 applied to the Appellate Authority for condonation of delay in making the deposit. The Appellate Authority as perils order dated 5-1-1978 has condoned the delay enabling the 1st respondent to obtain restoration of the property in terms of the order of the Land Tribunal da ted 20-6-1972. It is against this order of the Appellate Authority that the petitioner has filed the Civil Revision Petition.

3. Counsel for the petitioner submits that the Appellate Authority has no jurisdiction to extend the time for deposit, the appellate jurisdiction in matters like this cannot extend beyond the jurisdiction of the Land Tribunal, the Tribunal itself, as rightly held by the Appellate Authority, has no jurisdiction to extend the time and he nee the impugned order of the Appellate Authority is without jurisdiction and void. Sub-section (3) of Section 13A empowers the Tribunal, on satisfaction of the conditions mentioned in Sub-section (1), to make an enquiry and pass an order for restoration directing the applicant to deposit the compensation received by him under any decree or order of court towards value of improvements or otherwise and the value of improvements, if any, effected by the decree holder as may be determined by the Land Tribunal, within such time as may be specified in the order itself. The time fixed for deposit is an essential and an integral part of the order for restoration itself, and in the absence of any other provision in the Act or the Rules, the Tribunal has no jurisdiction to extend the time fixed for deposit under Sub-section (3) of Section 13A of the Act. Counsel points out that wherever the legislature thought it necessary to confer such power for extension of time to the Tribunal, the Act itself has provided for such extension such as under Sub-section (3) of Section 22 empowering the Tribunal to extend the time for payment of compensation due to a tenant whose holding or part of the holding is to be resumed in terms of an order under sub-sec. (2). Learned counsel for the respondents submits that the Appellate Authority has jurisdiction under Section 102 of the Act to extend time for compliance to the orders of the Land Tribunal. Sub-sec. (3) of Section 102 provides that in deciding appeals under Sub-section (1), the appellate authority shall have all the powers of a civil court and follow the same procedure which a court follows in deciding appeals against decrees of an original court under the Code of Civil Procedure. It is also pointed out that under Sub-section (2) of Section 107 of the Code of Civil Procedure 'the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted therein.' According to learned counsel Sub-section (3) of Section 13A authorises the Land Tribunal to fix a time within which the deposit of the amounts mentioned therein is to be made. Since the power is conferred on the Tribunal to fix the time, it is also empowered to extend the time in appropriate cases, and such extension would also fall under Sub-section (3). It is also submitted that in disposing of the appeal, the appellate court would have fixed a time for deposit and that court has only corrected its own error in having omitted to fix a time for compliance to the order under Sub-section (3) of Section 13A.

4. In the present case it is unnecessary to decide the question as to the jurisdiction of the Appellate Authority to grant extension of time for deposit of the amount due under Sub-section (3) of Section 13A of the Act for the reason that the effect of such extension will be the revival of an illegal order passed by the Land Tribunal. Sub-section (1) of Section 13A is extracted below :

'Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land :

Provided that nothing in this sub-section shall -

(a) apply in any case where the said land has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or

(b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act.'

The section requires that the person seeking restoration has to show that he would have been a tenant under the Act as amended by the Amendment Act of 1969 at the time of his dispossession. The Amendment Act came into force on 1-1-1970. In the present case the 1st respondent was dispossessed in execution of the decree in O. Section No. 734 of 1967 as early as on 31-1-1969. A mortgagee to be a deemed tenant under Section 4A(1)(a) of the Act should be holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. On the date of commencement of the Act the 1st respondent was not in possession and he is not entitled to the benefits of Sub-section (1)(a) of Section 4A of the Act. In a similar case where the mortgagee dispossessed prior to the date of commencement of the Amendment Act, 1969 sought restoration of possession under Section 13A of the Act on the basis that he is entitled to the benefits of Section 4A(1)(a) as a deemed tenant, a Division Bench of this Court in the decision in Devaki Amma v. Ramakrishna Pillai, 1974 Ker. LT 787 stated as follows : -

'5. Reading the section by itself it is clear that in order that the section might apply the mortgagee must hold the property mortgaged for a continuous period of not less than 50 years immediately preceding the commencement of the Amending Act. Immediately preceding the commencement of the Amending Act cannot be understood as was contended to mean at some anterior period before the commencement of the Act. Every word in the section will have to be given its due weight. If 'immediately' was not in the section perhpas it was possible to contend that at the time of the commencement of the Act the mortgagee need not have been in possession. Even this is doubtful and we shall express no final opinion on this matter for there are sections in' the Act which have used the words preceding the commencement of the Act without the prefix 'immediately'. All that is necessary to emphasise is that 'immediately preceding' can have no meaning other than that at the time of the commencement of the Amending Act the mortgagee must be holding the property. Such holding must have been for a continuous period of not less than 50 years. It was not urged before us that the mortgagees in the two cases had not been holding the property for a period of 50 years before they were dispossessed. The only point urged was that the mortgagees were not holding the property for a continuous period of not less than 50 years immediately preceding the commencement of the Act. This contention has to be accepted for that is the only meaning that can be given to the section.'

This decision of the Division Bench was approved by a Full Bench of five Judges of this Court in the decision in Velu v. State of Kerala, 1979 Ker LT 759 : (AIR 1980 Ker 25). In the light of the language of sections 4A(1)(a) and 13A and in the light of the aforesaid decisions of this Court, it is clear that the order of the Land Tribunal dated 20-6-1972 allowing restoration of possession of the land on condition of deposit of Rs. 1834.31 within one month of the order was an illegal order that became impossible of performance for the default of the 1st respondent in making the requisite deposit within the time specified in the order. The effect of extending the time and condoning the delay is to revive and give effect to an illegal order passed by a statutory Tribunal. Even assuming (without deciding) that the Appellate Authority has jurisdiction to extend the period of deposit required to be made under Sub-section (3) of Section 13A of the Act, such jurisdiction will not be exercised to perpetuate an illegal order that has worked itself out. The jurisdiction to condone delay and to extend time is purely discretionary and the discretion will not be exercised to promote an illegality. In the decision of the Supreme Court in Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828 it is stated as follows : --

'(17) The result of the discussion may be stated thus : The Primary Health Centre was not permanently located at Dharmajiguden. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajiguden village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order -- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.'

The same principle is followed in the decision in Hindustan Construction Co. Ltd. v. G. K. Patankar (1976) 1 SCC 810 : (AIR 1976 SC 907).

For the aforesaid reasons the impugned order of the Appellate Authority (Land Reforms), Alleppey, condoning the delay in compliance to the order of the Land Tribunal dated 20-6-1972 is unsustainable and it is accordingly set aside. LA. No. 927 of 1977 filed by the 1st respondent before the Appellate Authority is dismissed. The Civil Revision Petition is allowed. There will be no order as to costs.


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