G. Ramanujam, J.
1. In a proceeding under Section 9(2) of Tamil Nadu Act LVIII of 1961(hereinafter called the Act), the petitioner was held to have a surplus of 9.68 acres. There was a draft statement under Section 10(1) of the Act. In his objection under Section 10(2) of the Act, the petitioner wanted exclusion under Section 73(vii) of three survey numbers from his holding on the ground that the said extent comprised of a thope. The authorised officer after making a local inspection held that there is no thope and therefore the lands for which exemption is claimed by the petitioner cannot be excluded from his holding. The petitioner also objected to the draft statement under Section 10(1) on the ground that some lands which have been encumbered by him have to be excluded from his holding. This contention also was not accepted by the authorised officer. As against this final statement under Section 10(5) the petitioner filed an appeal before the Land Tribunal. Before the Land Tribunal, apart from reiterating the contentions raised before the authorised officer, the petitioner raised a further contention that as he had not exercised the option to specify the lands for his retention, within his ceilingare a earlier, he might be given an option to retain the lands pointed out by him in lieu of some other lands of the same extent which the authorised officer has treated to be within his ceiling. The Tribunal rejected all the contentions raised by the petitioner. Hence this revision by the petitioner.
2. I am not inclined to agree with the contention of the petitioner that he is entitled to claim exemption in respect of survey numbers 583, 586 and 608/A1 on the basis that there is a thope in those survey numbers and that the encumbered lands are to be excluded from his holding. It has actually been found that the petitioner purchased the said three survey numbers after 1st July, 1959, and if the petitioner had raised a thope therein it could be only after his purchase. Therefore, on the relevant date, namely, 1st July, 1959 there was no thope on the land and therefore no exemption could be claimed under Section 73(vii) of the Act. The claim for exclusion of the encumbered land from his holding is equally without substance. There is no provision in the Act providing for exclusion of the land which had been encumbered by the holder. Therefore the Tribunal is right in rejecting those two contentions.
3. But I am of the view that the 3rd contention of the petitioner that he might be allowed to exercise his option to retain within his ceiling limit S Nos. 589/2, 617/ 3D, 617/3B. 617/3C, 591/1 and 611-B on his offering an equal extent of land declared surplus by the authorised officer. The Tribunal has rejected this claim of the petitioner on the only reasoning that the petitioner had an opportunity to exercise the option at the stage of enquiry under Section 9 It is also true that under Section 10(3) if the owner fails to specify the particular and for retention the authorised officer could pecify the lands for retention in the draft statement. But the question is, merely because the petitioner failed to exercise the option at the earlier stages, whether his request could be rejected.
4. In this case the petitioner has preferred an appeal to the Tribunal agitating the question of option and if there is no prejudice caused to any one by giving him the option required, the Tribunal could have accepted his stand. In this case what the petitioner wants is the retention of 9.68 acres of land in S. Nos. 589/2, 617/3D, 617 /3C, 591/1 and 611B now declared as surplus in lieu of the same extent of 9.68 acres offered by him in S. Nos. 581/ 2, 589/2, 616/3D, 617/3C, 617 of 3C, 591/1 and 611B. There is no dispute that the statute gives an option to the owner to retain such land as he wants within his ceiling area. It is true that the petitioner has not exercised his option before. But at the stage of appeal before the Tribunal the petitioner bad come forward with a plea that he may be permitted to retain some land declared as surplus in lieu of his offering an alternate land of the same extent. So long as the extent is the same and there is no impediment in accepting the option now exercised by the petitioner, I do not see why the petitioner to whom the statute has given a right of option, should be denied the benefit merely on the ground of delay in giving the option. While construing a statute similar to Tamil Nadu Act LVIII of l961, in Susila Devi Ammal v. State of Madras (1978) 2 MLJ 424 : 91 LW 507, Chief Justice Ramaprasada Rao, has pointed out that law is always tempered with mercy, and that justice is a product of such merciful application of law. In my view, therefore, the Tribunal should have in the interest of justice permitted the petitioner to exercise the option by substituting the land of his choice for his retention for the land specified by the authorised officer as surplus, which is of the same extent. In this view, the civil revision petition is allowed in part and the matter is remitted to the authorised officer with a direction to permit the petitioner to retain the land in S. Nos. 589/2, 617/3D, 617/3B, 6173/C, 591/1, and 611B (total extent of 9.68 acres) in lieu of an equal extent in the survey numbers mention ed by him. No. costs.