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V. Sellappan Vs. the District Revenue Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ281
AppellantV. Sellappan
RespondentThe District Revenue Officer and ors.
Cases ReferredV. Usman v. Muthukrishnan
Excerpt:
.....restoration, it is also not challengable, and when the said petition is taken up for hearing, the revisional authority was exercising the powers under section 7 of the act, so that he may pass a lawful order having failed to pass such an order on 27th july, 1978. to substantiate this contention, he relies upon the above said decision, which dealt with the scope of section 33(4) of income-tax act, 1922 and which authorises the appellate tribunal under sub-section 4 to pass orders after giving both parties an opportunity of being heard, as it thinks fit; in this matter, the order passed on 27th july, 1978 being one which had resulted in the failure to exercise jurisdiction vested in the revisional authority, the impugned order had been passed within his jurisdiction. but in the instant..........for the petitioner, first submits that having dismissed the revision petition for default, the revisional authority has no jurisdiction to restore the application, and thereafter 10 dispose of it on merits. he refers to section 7 of the act, which according to him, nowhere deals with a power invested in the revisional authority to revise an order, which had been already rejected. he states that there being no power of review invested in the said authority, the impugned order is illegal. he also relies upon rule 13 of the rules framed under the act, which only contemplates the power to entertain application for revision presented beyond time.3. he then refers to rule 8 (ii)(g) of rules framed under act xxv of 1955, which enables the constituted court to dismiss a petition for default.....
Judgment:

T. Sathiadev, J.

1. The petitioner claims that he is a cultivating tenant within the ambit of Act X of 1969 and that the lands belonged to 4th respondent. Petitioner's name was entered in the Registers, and finally published in the District Gazette on 24th May, 1971, as a tenant. Nearly after six years, 4th respondent had filed an application before third respondent for rectification, which was dismissed. The appeal preferred to second respondent was also rejected. A further revision filed to first respondent was first dismissed for default by order, dated 27th july, 1978, but later on it was restored, and ultimately by the impugned order dated 20th June, 1975, the revision petition was allowed resulting in the removal of the name of the petitioner from the records as a tenant, Aggrieved against the said order, this writ petition is filed.

2. Mr. V. Ramajagadeesan, learned Counsel for the petitioner, first submits that having dismissed the revision petition for default, the Revisional Authority has no jurisdiction to restore the application, and thereafter 10 dispose of it on merits. He refers to Section 7 of the Act, which according to him, nowhere deals with a power invested in the Revisional Authority to revise an order, which had been already rejected. He states that there being no power of review invested in the said Authority, the impugned order is illegal. He also relies upon Rule 13 of the rules framed under the Act, which only contemplates the power to entertain application for revision presented beyond time.

3. He then refers to Rule 8 (ii)(g) of rules framed under Act XXV of 1955, which enables the constituted Court to dismiss a petition for default of appearance and to set aside such an order for good cause. He then refers to Rule 4(g) of the rules framed under Madras Act XXIV of 1956, which also enables the Rent Court and Rent Tribunal to dismiss a petition for default of appearance and set aside such an order for good cause. Likewise there being no provision made under Act X of 1963 or in the rules framed thereunder, he contends that when the Magistrate having provided for such a situation in other cases had knowingly avoided to provide for restoration of an application dismissed for default. Hence first respondent had no power to restore a petition dismissed for default.

4. These contentions of the petitioner are refuted by alleging that the order, that is now sought to be quashed is not the order of restoration, but the final order passed on merits, and as the petitioner has lost on merits, he has now come forward to claim that there could have been no restoration at all.

5. There being delay in the presentation of the revision petition, it was dismissed for default by order, dated 27th July, 1975, after issue of notice to both the parties. Thereafter it has been restored. Petitioner would state that it was done without any notice. If he is aggrieved by the order of restoration, he should have instituted proceedings challenging the order of restoration. Instead, he participated in the revision petition proceedings. Later on, it resulted in the impugned order being passed. He had acquiesced in the proceedings and he had never raised any objection regarding the maintainability or the jurisdiction of the first respondent. Therefore, having acquiesced in the proceedigns, he cannot, at this stage, challenge the order of restoration.

6. Petitioner would then contend that no party can confer jurisdiction on an authority, and therefore, the plea of acquiescence is without any substance. The finding given in the impugned case is not on the basis of parties conferring jurisdiction on an authority, but on the basis that the Revisional Authority has jurisdiction to set aside an inchoate order and that participation in such a proceeding would deprive the participant from later on challenging the jurisdiction of the Authority. Section 7 of the Act enables the Revisional Authority to examine the records and pass such orders as he may think fit. He is also conferred with 'suo motu' powers. Under Section 10 of the Act, even the Revisional Authority has the jurisdiction to entertain fresh evidence both oral and documentary. Hence, in Section 7 of the Act, it has been made more or less a second Appellate Authority. Hence, though in Section 7 of the Act, it is characterised as a 'Revision' in every sense, it has been made more or less a second Appellate Authority. The power being exercised is not akin to the usual revisional powers, wherein the Authority will be conferred only with the right to go into the legality or propriety of the decision arrived at in order or to find out as to whether there has been a proper exercise of jurisdiction vested and whether there has been any material irregularity in the order. Such restrictive qualifications not being found, necessarily the power under Section 7 of the Act has to be treated as a very wide power, which could be invoked for rendering justice, as the Revisional Authority 'may think fit'. Hence, it would not be correct to contend that the power of the Revisional Authority under this Act is circumscribed, so as to preclude him from granting such relief, as he may think fit.

7. Mr. Kumar relies upon the decision in Commissioner of income-tax, Madras v. S. Chenniappa Mudaliar : [1969]74ITR41(SC) for the proposition that whenever a power is vested in an Authority or Tribunal to dispose of the matter as it thinks fit, it cannot dismiss it for default of appearance, without passing an order both on law and facts, based on the points taken in the petition. His contention is that, the order passed on 27th July, 1978, dismissing the petition for default being contrary to law, it is honest and therefore, even assuming that there was an order for restoration, it is also not challengable, and when the said petition is taken up for hearing, the Revisional Authority was exercising the powers under Section 7 of the Act, so that he may pass a lawful order having failed to pass such an order on 27th July, 1978. To substantiate this contention, he relies upon the above said decision, which dealt with the scope of Section 33(4) of Income-tax Act, 1922 and which authorises the Appellate Tribunal under Sub-section 4 to pass orders after giving both parties an opportunity of being heard, as it thinks fit; and which power has been construed by the Supreme Court, to hold that an order of dismissal for default without going into facts and law pertaining to the matter is illegal. Rule 24 of the Appellate Tribunal Rules, 1946, as amended in 1948 enabled the dismissal of a matter for default of appearance. The said rule was struck down as contrary to the powers conferred under Section 33(4) of the Act, on the ground that the Appellate Tribunal has to dispose of the appeal as merits and 'cannot short-circuit the same by dismissing it for default of appearance'. Section 33 is equivalent to Section 254 of the Amended Income-tax Act, and is akin to Section 7 of Act X of 1969. Therefore there is a statutory compulsion on the Revisional Authority to dispose of the matter only by going into the facts and the law involved in the petition, and Revisional Authority has no jurisdiction to dismiss the petition for default of appearance.

8. Yet another decision relied upon in the one reported in Income-tax Officer v. M.K. Mohammed Kunchi (1969) 1 S.C.J. 772 : (1969) 1 I.T.J. 458 : (1969) 2 S.C.R A.I.R. 1969 S.C. 430, which arose under Income-tax Act, 1961, in which it was held that the power of the Tribunal is of the widest amplitude and such a statutory power impliedly grants the power of doing all such acts, or employing such means as are essentially necessary to the execution of such jurisdiction, and carried with it the power to stay proceedings in proper cases. There is no provision under the Act to stay recovery of penalty or tax due from an assessee when an appeal is pending before the Tribunal. Inspite of it, it was held by the Supreme Court that in deserving and appropriate cases, stay of collection of taxes can be granted, failing which it would make the power of appeal frustrated or rendered nugatory, and that the general principle that in a taxing statute there is no room for what could be called equitable construction applies only to the taxing part of the statute and not to its procedural part.

9. These two decisions of the Supreme Court make it amply clear that, even in the absence of a provision for dismissal for default and thereafter for restoration of the petition as provided under other enactments, in the absence of the petitioner or his counsel, the Revisional Authority, under Section 7 of the Act cannot dismiss the petition without going into the points taken in the petition, and it has to render its final decision both on facts and law. In this matter, the order passed on 27th July, 1978 being one which had resulted in the failure to exercise jurisdiction vested in the Revisional Authority, the impugned order had been passed within his jurisdiction.

10. No doubt reference is made to the following three decisions which are not quite necessary, but for the purpose of completeness they are being referred to.

11. In J. N.D. Syndicate v. Income-tax Commissioner, New Delhi : [1977]106ITR653(SC) , arising under the Income-tax Act, 1922, it was held that when a reference is made to the High Court, and in the absence of party, on the reference being dismissed, if the party shows adequate grounds later on for non-appearance, then, the High Court has an inherent power to recall its earlier order and dispose of the reference on merits. The Revisiopal Authority under the Act is not a Court, and there can be no inherent powers vested in him.

12. Subhash Chander v. Bodh Raj A.I.R. 1969 J.&K.; 8., is relied upon by the Government Pleader to contend that to rectify its own mistake, a Court has an inherent power, and when there is need to redress the wrong which has resulted in an abuse of the process of the Court' restitution can be ordered. This decision would be relevant, only if any mistake, had been committed; but in the instant case, there was only a failure to exercise jurisdiction vested in the authority.

13. V. Usman v. Muthukrishnan : AIR1978Mad158 , is relied upon by the counsel for the fourth respondent for the purpose of showing that even a quasi-judicial authority exercising powers under Act XVIII of 1960 has the jurisdiction to rectify mistaken committed by the Rent Controller. In construing any of the sections of the enactments passed by the Tamil Nadu Legislature, provisions of the Tamil Nadu General Clauses Act, (I of 1891) would be applicable. Section 13 is to the following effect:

13. When powers or duties to be exercised and performed:

Where an Act confers a power or imposes a duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.

Hence, when a power is conferred on the Authority, he has to perform it from time to time, 'as occasion requires'. Section 7 of Act X of 1969 says that it is open to the authority to pass orders as 'he may think fit'. It is not an arbitrary power that could be exercised, but the Revisional Authority is to exercise such powers as spelt out by the Supreme Court in the 'abovesaid two decisions, by passing considered orders with reasons, both on facts and law. Hence, the order dated 27th July, 1978, being honest, thereafter, he realised that such an order could not be a lawful order, and therefore as the 'occasion required' for the matter to be heard in detail in the presence of both the parties, he issued notices to the petitioner who also willingly responded and participated in the hearing. Having thus exercised the powers lawfully, it will not be proper to hold that the impugned order was passed without jurisdiction or that the order of restoration is against the provisions of ihe Act and the rules.

14. Mr. Ratmajagadeesan, learned Counsel for the petitioner would then contended that the impugned order is in the nature of review, and after six long years, it is not open to respondents 1 to 3 to entertain the petition filed by the 4th respondent. Here again, this point carries no substance, in view of Section 4(1)(a) of the Act, which enables a Record Officer to take suo motu action, when it appears to him that in respect of any land let for cultivation the landowner has failed to make application for rectification or inclusion under Section 3(6) of the Act. In such contingencies enquiry can be held and orders passed accordingly. Section 3(6) deals with remedy to rectify any entry found in the draft record, which could be sought by either a landowner, intermediary or tenant. Hence there was ample jurisdiction for respondents 1 to 3 to entertain the petition filed by the 4th respondent herein, for rectification of the entries found in the registers.

15. For the reasons above stated, the points above referred to having been held as against the petitioner, and no other point being canvassed, this petition is dismissed. No costs.


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