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S. Sundararajan Vs. the Authorised Officer (Land Reforms) - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Reported in(1980)1MLJ36
AppellantS. Sundararajan
RespondentThe Authorised Officer (Land Reforms)
Cases ReferredD.M. Rao v. Ranga
Excerpt:
- .....authorised officer, land reforms, tirunelveli against whose order an appeal had been filed to the land tribunal. the land tribunal disposed of the said appeal on 30th october, 1974. a review application was filed by the authorised officer on 27th october, 1975, after considerable delay. along with the review application, an application for excusing the delay in filing the review application (i.a. no. 16 of 1976) had also been filed stating that the order of the tribunal had to be examined at various levels and the higher authorities had to be consulted for filing a review application and that examination and consultation resulted in the said delay and that as such the delay was not wilful.3. the application for condonation of the delay was opposed by the petitioner herein on the ground.....
Judgment:

G. Ramanujam, J.

1. This revision is directed against the order of the Land Tribunal, Tirunelveli excusing the delay in filing a review application under Section 5 of the Limitation Act in C.M.A. (L.T.) No. 13 of 1972.

2. The respondent is the Authorised Officer, Land Reforms, Tirunelveli against whose order an appeal had been filed to the Land Tribunal. The Land Tribunal disposed of the said appeal on 30th October, 1974. A review application was filed by the Authorised Officer on 27th October, 1975, after considerable delay. Along with the review application, an application for excusing the delay in filing the review application (I.A. No. 16 of 1976) had also been filed stating that the order of the Tribunal had to be examined at various levels and the higher authorities had to be consulted for filing a review application and that examination and consultation resulted in the said delay and that as such the delay was not wilful.

3. The application for condonation of the delay was opposed by the petitioner herein on the ground that as Section 5 of the Limitation Act will not apply to the Land Tribunal which is not a Court, it cannot condone the delay invoking that section. The Tribunal, however, has taken the view that as the Act which gives the power of review to the Tribunal does not provide for any period of limitation for filing an application for review, the residuary provision in Article 137 of the Limitation Act could be invoked by the party seeking the review even if Section 5 of the Limitation Act cannot be invoked by the Tribunal, The Tribunal then went into the question as to whether sufficient grounds have been shown for condonation of the delay and after holding that there was sufficient cause for the delay, condoned the delay in filing the review application. Aggrieved against the order of the Tribunal condoning the delay, the respondent in I.A. No. 16 of 1976 on the file of the Land Tribunal has filed the present revision petition.

4. The contention of the petitioner is that the Tribunal having held that Section 5 of the Limitation Act will not apply, erred in holding that the delay could be condoned under Article 137 of the Limitation Act and that the reasoning given by the Tribunal for condonation of the delay is in any event unsustainable. It has also been contended that the Tribunal has no power to review under the provisions of Tamil Nadu Act LVIII of 1961 or fee Rules framed thereunder.

5. Whether the Tribunal has got the power of review or not has to be decided with reference to the provisions of Tamil Nadu Act XVIII of 1961 constituting the Tribunal and the provisions dealing wife its powers and jurisdiction. Section 76 of the Act provides for the constitution of as many Land Tribunals as necessary for the purpose of the Act. Section 77(3) says that each Tribunal shall have the same powers as are vested in a civil Court under fee Code of Civil Procedure, 1908. Section 78(3) provides the manner of disposal of appeals filed before the Tribunal. It says that the Tribunal, after giving fee parties a reasonable opportunity of being heard shall (i) determine a case finally, (ii) remand a case and (iii) take additional evidence or require such evidence to be taken by the Authorised Officer. Section 80 says that the provisions of Section 4 and of subsections (1) and (2) of Section 12 of the Indian Limitation Act, 1908 shall, as far as may be, apply to any appeal under Section 78 or Section 79. Rule 11 of the Land Reforms (Fixation of Ceiling on Land) Rules, 1962, deals with the powers of the Authorised Officer and the procedure to be followed by him. That rule says:

(1) The proceedings of the Authorised Officer shall be summary and shall, subject to the provisions of the Act, and these rules, as far as possible be governed by the provisions of the Code of Civil Procedure, 1908, with regard to-

(a) the issue and service of summons;

(b) the examination of parties and witnesses;

(c) fee production of documents;

(d) the amendment of pleadings;

(e) the addition of parties;

(f) the passing of ex parts orders and setting them aside for good cause;

(g) the ordering dismissal for default of appearance and setting aside such orders for good cause;

(h) the reviewing of orders passed on ground of apparent error;

(i) local inspection; and (j) the passing of orders.

(2) A summons requiring the attendance of any person or for the production of any document during an enquiry under fee Act or these rules shall be in Form 5.

According to the petitioner, neither Section 77 nor Section 78 confers a power of review to the Tribunal and though the Tribunal has the same powers as are vested in a civil Court under the Code of Civil Procedure under Section 77(3), that will not enable the Tribunal to entertain a review application as such a power has not been specifically given, and though the Tribunal is invested with the powers of a civil Court that will mean that the Tribunal can have all fee powers of a civil Court in the matter of disposal of the appeals before it, and not for entertaining a review application. It is also pointed out by the learned Counsel for the petitioner that while Rule 11 specifically confers a power of review on the Authorised Officer, there is no such specific conferment on fee Tribunal and therefore, the Land Tribunal should be taken to have no power to review its own orders. In support of this plea, the learned Counsel refers to the decision in S. Ganapathi v. N. Kumaraswami : AIR1975Mad383 , in which it was held that the Appellate Authority functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not a Court but a persona designate, and therefore, it has no power to condone the delay in filing appeals before it by invoking Section 5 of the Limitation Act. The petitioner submits feat on the same analogy the Land Tribunal can only be treated as a persona designate and not a Court, and therefore, the Tribunal could not invoke Section 5 of the Limitation Act. Reference also has been made to fee decision in Town Municipal Council v. Presiding Officer, Labour Court : (1969)IILLJ651SC , wherein it has been pointed out that Section 137 and the other Article in the third division of the schedule will only applp to applications made to Court under the Civil Procedure Code with the exception of applications under the Arbitration Act and also under the Criminal Procedure Code and not to applications made to Industrial Tribunals or Labour Courts.

6. The learned Counsel for the respondent would however assert that the Tribunal has the power to review its own orders as also the power to condone the delay in filing a review application. Thus the controversy between the parties relates to the following three questions:

(1) Whether the Tribunal has the power to review its own orders.

(2) Whether the Tribunal has got the power to condone the delay either under Section 5, and whether the review application could be filed within 3 years under Article 137 of the Limitation Act.

7. That the Tribunal is only a persona designata and not a Court is beyond any doubt. Section 76 which provides for the constitution of Land Tribunal says that the Government shall constitute a Land Tribunal consisting of a Judicial Officer not below the rank of a Subordinate Judge and Section 77(1) enables the Government to determine the areas over which the Tribunal so constituted can exercise jurisdiction. These provisions make it clear that the Tribunal constituted is only a persona designata and not a Court. The learned Counsel for the respondent also does not dispute this position. The controversy between the parties is only as to whether the Tribunal has got the power to review its own orders. While the petitioner says that the Tribunal has no such power the respondent asserts that it has. Section 77(3) confers on the Tribunal all the powers vested in a civil Court under the Code of Civil Procedure. This seems to suggest that the Tribunal will have all the powers which the civil Court has under the Code of Civil Procedure. There cannot be any doubt that a Court functioning under the Code of Civil Procedure has the power to review. However, the learned Counsel for the respondent would refer me to Sub-section (3) of Section 78 and say that though Section 77(3) is somewhat wide so as to attract all the provisions of the Code of Civil Procedure, Sub-section (3) of Section 78 curtails the said wide power, for, Section 78(3) merely enables the Tribunal to determine the case finally, remand a case or take additional evidence or require such evidence to be taken by the Authorised Officer, and there is no reference to the power of review. I am not inclined to agree with the learned Counsel for the respondent that Section 78(3) should be taken to supersede or curtail in any manner Section 77(3). Section 78(3) merely says how tire Tribunal should dispose of the appeal after hearing the parties. That provision will not apply to a stage where the appeal has been disposed of by the Tribunal and a party seeks a review of its order. Since Section 77(3) specifically invests all the powers of a civil Court under the Civil Procedure Code on the Tribunal, it should take in the power of review as well, and that power has not been curtailed by Sub-section (3) of Section 78 as contended for by the respondent.

8. The argument of the petitioner based on Rule 11 is that while the Authorised Officer has been specifically given the power to review, the Tribunal has not been given such power. Here again, I do not see any merit in the said contention. The Authorised Officer has not been invested with all the powers of a civil Court and only certain enumerated powers had been conferred on the Authorised Officer and one of such enumerated powers is the power of review. That is not the case in relation to the Tribunal. The Tribunal has been invested with all the powers of a civil Court and there is no necessity for enumerating the various powers, particularly the power of review. I have to therefore, hold that the Tribunal has got the power to review its own orders.

9. Once all the powers of a civil Court under the Civil Procedure Code are available to the Tribunal, it can entertain a review petition within the time which is normally prescribed for filing review petitions before the civil Courts. The period for filing a review petition before a civil Court is 30 days from the date of the order. In this case the review petition has been filed beyond the period of 30 days and, therefore, the necessity arises to file an application for condonation of the delay. But, the delay could be condoned only by invoking the power under Section 5 of the Limitation Act. Having regard to Section 80 of the Act which says that the provisions of Section 4 and of subsections (1) and (2) of Section 12 of the Indian Limitation Act, 1908 will alone apply to any appeal under Section 78, the question has to be considered whether Section 5 of the Limitation Act could even then be applied by the Tribunal. When particular sections of the Limitation Act have been made applicable under Section 80, the normal inference is that the other sections are not applicable. If all the provisions of the Limitation Act were to apply to the Tribunal, then there is no necessity to refer to a few of the provisions of the Act and say that those provisions will apply to the Tribunal. Therefore, the intention of the Legislature appears to be not to make Section 5 applicable to appeals before the Tribunal. Having regard to the language of Section 80 of the Act, it is not possible to say that Section 5 of the Limitation Act can be applied to proceedings before the Tribunal.

10. In a case arising under the Kerala Buildings (Lease and Rent Control) Act, 1965, a Full Bench of the Kerala High Court in Fernandez v. Umma : AIR1974Ker162 , held that the Appellate Authority under that Act is a persona designata and as such neither Section 5 nor Section 5 read with Section 29(2) of the Indian Limitation Act will apply for condoning the delay in filing appeals. In Abdul Wahid v. Abdul Khader : AIR1947Mad400 , Yahya Ali, J., had held that the Appellate Authority constituted under Section 12 of the Madras Buildings (Lease and Rent Control) Act, 1946 is a persona designata and not a Court. Similar view has been expressed by this Court in Chinnaiah Thevar v. Badsha : (1948)1MLJ314 , Rajam Aiyar v. Pavanambal : (1949)1MLJ419 and S. Ganapathy v. Kumaraswatni : AIR1975Mad383 . In view of the above decisions the Land Tribunal cannot be considered as a Court, and it cannot invoke Article 5 of the Limitation Act for condonation of the delay in filing the review before it.

11. The learned Counsel for the respondent refers to the decision in D.M. Rao v. Ranga : AIR1975AP13 , wherein it has been held that the Rent Controller acting under the Rent Control Act is a Court and Section 5 of the Limitation Act is applicable to the proceedings before it. But, with due respect to the learned Judge who decided that case, I cannot agree with that view. Even assuming that the said decision is right, it cannot be applied here for the reason that Section 80 of the Act (sic) applies only certain specific sections of the Limitation Act to the proceedings before the Land Tribunal, it has to be held that the Land Tribunal has no power to invoke Section 5 of the Limitation Act which is not one of the specified sections for purpose of condoning the delay in filing a review petition.

12. Further, the Tribunal in this case proceeds on the basis that though Section 5 of the Limitation Act may not apply, the time for filing a review petition should be taken to be governed by Article 137 of the Limitation Act, as Section 77(3) does not provide for any period of limitation for an application for review and, therefore, the residuary Article 137 would alone apply. That being the basis of the decision of the Land Tribunal, it should have held that the application for excusing the delay is not necessary as the review application has been filed within the period of three years prescribed by Article 137. But, the Tribunal has ultimately excused the delay on the ground that it was due to administrative reasons which was unavoidable. The question is as to what is the period of limitation for filing a review application before the Tribunal.

13. Article 124 provides a period of thirty days from the date of the order sought to be reviewed for seeking review of a judgment by a Court other than the Supreme Court. In view of the fact that the Land Tribunal is invested with all the powers of a civil Court under the Code of Civil Procedure, it has got the power to review its own orders and such a power could be invoked by a party before the Tribunal in the same manner as it would be invoked by a party before a civil Court. If that were to be so a party before civil Court has to file a review application within 30 days from the date of the order or decree. On the same analogy a party before the Land Tribunal should also invoke the power of review within the said period. Merely because Act LVIII of 1961, does not provide specifically for limitation, resort cannot be had to the residuary provision in Article 137. Even the Civil Procedure Code does not contain the period of limitation for filing any review before the Court, and one has to look into the provisions of the Limitation Act for that purpose. Similarly, once the Land Tribunal is considered to be a Court for the purpose of filing a review, the review has to be filed within the same time as it would be filed before a civil Court. Article 137 is a residuary Article which has to be applied only when no period of limitation is prescribed in the schedule to the Limitation Act. Therefore Article 137 cannot be invoked in this case.

14. The result is, the order of the Land Tribunal condoning the delay in filing the review application cannot be sustained. Nor could the review petition be held to be in time under Article 137. The Civil Revision Petition is therefore allowed. However, there will be no order as to costs.


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