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Peter Joseph Vs. Appellate Authority (L.R.), Ernakulam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 2127 of 1980-C
Judge
Reported inAIR1981Ker251
ActsKerala Land Reforms Act, 1964 - Sections 80A(3); Kerala Land Reforms (Amendment) Act, 1969; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantPeter Joseph
RespondentAppellate Authority (L.R.), Ernakulam
Appellant Advocate S. Easwara Iyer and; E. Subramani, Advs.
Respondent Advocate Govt. Pleader and; O.V. Radhakrishnan, Adv.
Excerpt:
- - when, in an appeal, a ground is taken that the original court or the tribunal had failed to consider a particular question of law raised before it, the appellate court or the authority, whose powers are co-even with those of the original court or the authority, has not only the right but also the duty to decide whether that question of law actually arises or not, and if found applicable, to see what impact it has on the decision under appeal......his kudikidappu in the land belonging to the 3rd respondent. the order allowing the purchase of 10 cents of land including his hut thereon passed on that application was set aside by the appellate authority and the matter remanded to the land tribunal. thereafter remand enquiry resulted in ext. p-1 order, once again allowing the kudi-kidappukaran to purchase 10 cents of land. that order having been set aside and the matter remanded by ext. p-2 judgment, as already noticed, this writ petition has been filed. the original applicant having died during the pendency of the proceedings, his legal representative is prosecuting the matter.3. the main grievance of the petitioner is that the sole ground on which the setting aside and the remand are ordered is the contention raised by the 3rd.....
Judgment:
ORDER

K. Bhaskaran, J.

1. By its judgment dated 3-8-1979 made in L.R.A.S. No. 1005 of 1977, a true copy of which is Ext. P-2, the 1st respondent, Appellate Authority (Land Reforms), Ernakulam, set aside the order dated 16-8-1976 made in O.A. No. 218 of 1973 by the 2nd respondent, the special Tahsildar (L.R.), Ramankari, hereinafter referred to as the Land Tribunal, a true copy of which is Ext. P-1, and remanded the matter to the Land Tribunal for fresh disposal. The writ petition is for quashing Ext. P-2 judgment.

2. Here the short facts are: The pre-decessor-in-interest of the petitioner made an application under Section 80B of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969 (the Act) for purchase of his kudikidappu in the land belonging to the 3rd respondent. The order allowing the purchase of 10 cents of land including his hut thereon passed on that application was set aside by the Appellate Authority and the matter remanded to the Land Tribunal. Thereafter remand enquiry resulted in Ext. P-1 order, once again allowing the kudi-kidappukaran to purchase 10 cents of land. That order having been set aside and the matter remanded by Ext. P-2 judgment, as already noticed, this writ petition has been filed. The original applicant having died during the pendency of the proceedings, his legal representative is prosecuting the matter.

3. The main grievance of the petitioner is that the sole ground on which the setting aside and the remand are ordered is the contention raised by the 3rd respondent that the kudikidappu is situate in 4 cents of land and therefore the petitioner was not entitled to purchase 10 cents of land, which is untenable both in law and on facts. No counter-affidavit is seen to have been filed by any of the respondents. The counsel for the 3rd respondent contended that there is no scope for interference in a proceeding under Article 226 of the Constitution inasmuch as even the pleadings of the petitioner do not disclose any error of jurisdiction or law.

4. The tendency on the part of appellate courts and appellate authorities to resort to remands as a convenient method and short-cut for boosting up disposal figures or to shirk their responsibility to set at rest the disputes raised, by giving a final decision, deserves to be strongly deprecated, as that adds to the agony of the litigant who is already disgusted with the expenses and delay involved in the proceedings and contributes to the stagnation of work in the overburdened trial courts and Tribunals. When, in an appeal, a ground is taken that the original court or the Tribunal had failed to consider a particular question of law raised before it, the appellate court or the authority, whose powers are co-even with those of the original court or the authority, has not only the right but also the duty to decide whether that question of law actually arises or not, and if found applicable, to see what impact it has on the decision under appeal. It is not proper for the appellate court or the authority mechanically and without applying its own mind to remand the matter to the original court or authority on the sole ground that it did not consider what is purported to be a question of law raised before it unless it (the appellate court or authority) finds that there is compelling reason for doing so, and without doing so a proper adjudication is not possible.

5. Now, coming to the present case, it is found from Ext. P-3 order that the 3rd respondent had raised two contentions: (1) no fresh mahazar or enquiry report was prepared in respect of the kudikid-appu when the case was remanded by the Appellate Authority for fresh trial and disposal; and (2) according to the proviso to Section 80A (3) of the Act kudikid-appukaran was entitled to purchase only 4 cents of land since the kudikidappu is situate only in 4 cents. As for the first contention, the 1st respondent did not consider it or enter a finding. Ext. P-1 order was set aside and the matter remanded solely for the reason -- 'On a perusal of the lower court records it is seen that the appellant filed objections before the lower court stating that the extent of kudikidappu is only 4 cents and that therefore the kudikidappukaran is entitled to purchase only 4 cents. The lower court has not considered this question.'

6. It is not the law that a kudikidappukaran is entitled to purchase only the extent of land on which the kudikidappu is situate. Sub-sec. (3) of Section 80A lays down:

'The extent of land which the kudikidappukaran is entitled to purchase under this section shall be three cents in a city or major municipality or five cents in any other municipality or ten cents in a panchayat area or township:

Provided that where the land available for purchase in the land in which the kudikidappu is situate, or the land in which the kudikidappu is situate, is less than the extent specified in this sub-section, the kudikidappukaran shall be entitled to purchase only the land available for purchase or, as the case may be, the land in which the kudikidappu is situate.' There is no pleading that the land available for purchase in the land in which the kudikidappu is situate is less than 10 cents allowed to be purchased by the Land Tribunal under Ext. P-l order. That being the position, the remand is a futile exercise to serve no useful purpose. What is purported by a question of law could have been considered and decided giving a finality to the dispute by the 1st respondent Appellate Authority Itself. I have, therefore, no doubt that the 1st respondent Appellate Authority has misdirected itself in remanding the matter without any valid cause for doing so. 7. With the above observations this writ petition is disposed of. The second respondent will dispose of the matter according to law and taking due note of the observations contained in this judgment as expeditiously as possible. I refrain from issuing a writ of certiorari to quash Ext. P-2 judgment inasmuch as the 1st respondent Appellate Authority is not seen to have recorded any finding, but only noticed the contentions of the 3rd respondent. In the circumstances of the case I direct the parties to bear their respective costs.


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