KUNHI PATHU v. AYSHU — 1972 DIGILAW 161 (KER)

Judgment :- 1. The petitioner in this revision petition under S.103 of the Land Reforms Act (Act 1 of 1964 as amended by Act 35 of 1969) is the petitioner in O. A. No. 138 of 1966 on the file of the Land Tribunal (Munsiff) of Kozhikode. The respondent is the respondent in the said proceedings before the Land Tribunal. 2. In order to appreciate the scope of the contentions raised in this revision petition, it is necessary to narrate briefly the facts of the case which are as follows: The petitioner filed O. A. No. 138/66 under S.15 of Act 1 of 1964 for resuming the land held by the respondent as tenant under her. The respondent contested the matter, but without success. On 1712 1966 the order for resumption was passed. An appeal, A. A/Kozhikode/15/70 on the file of the Appellate Authority (Land Reforms), Kozhikode (which was originally filed as C. M. A. 9/67 in the Sub Court, Badagara) filed by the respondent, was dismissed on 21 111970. It is also represented that revision filed by the respondent against the judgment of the appellate authority was dismissed by this Court at the stage of admission. 3. However, it has not been possible for the petitioner to realise the benefits of the order that was passed by the Land Tribunal in her favour. The Land Tribunal had in terms of S.22 (2) of Act I of 1964 directed the petitioner to deposit a sum of Rs. 266/-for payment to the respondent as a condition precedent to the resumption. The order directed that the said amount should be deposited within the time prescribed in R.10 of the Kerala Land Reforms (Tenancy) Rules, 1964. R.10 reads as follows: "Besides the particulars mentioned in sub-section (2) of S.22, the order passed by the Land Tribunal shall specify the survey numbers, and sub-division numbers, if any (or an adequate description) of the land allowed to be resumed the extent of land that will be left after resumption, and the value of the improvements belonging to the cultivating tenant and the other persons, if any, interested in the land allowed to be resumed. The order shall also specify the amounts to be paid by the landlord resuming the land, and the person to whom the payments are to be made, and shall further direct that the amounts be deposited with the Land Tribunal within a period of thirty days from the date of the order-On such deposit being made, the Land Tribunal shall pay the amounts to the parties and obtain receipt therefor." This rule substantially corresponds to R.11 of the Kerala Land Reforms (Tenancy) Rules, 1970 which reads as follows: "(1) Besides the particulars mentioned in sub-section (2) of S.22, the order passed by the Land Tribunal shall specify the survey numbers and sub-division numbers, if any (or an adequate description), of the land allowed to be resumed, the extent of land that will be left after resumption, and the value of the improvements belonging to the cultivating tenant and the other persons, if any, interested in the land allowed to be resumed (2) The order referred to in sub-rule (1) shall also specify the amounts to be paid by the landlord resuming the land, and the persons to whom the payments are to be made and shall further direct that the amounts shall be deposited with the Land Tribunal within a period of thirty days from the date of the order; and on such deposit being made, the Land Tribunal shall pay the amounts to the parties and obtain receipt therefor. (3) The order of the appellate authority against the order of the Land Tribunal udder sub-section (2) of S.22 shall, so far as may be specify the particulars mentioned in sub-rules (1) and (2)." 4. In terms of R.10 of the Kerala Land Reforms (Tenancy) Rules, 1964, the petitioner was required to make the deposit of the value of improvements directed to be paid within one month from the date of the order. In other words, the deposit ought to have been made on or before 17 11967, as the order for resumption in the instant case was passed on 17121966 and the direction was that the amount should be deposited within the time prescribed by R.10 of the Kerala Land Reforms (Tenancy) Rules, 1964. The petitioner could not deposit the amount within the prescribed time, it is stated, partly because she was laid up and partly because she could not raise the necessary funds. The petitioner could not deposit the amount within the prescribed time, it is stated, partly because she was laid up and partly because she could not raise the necessary funds. It was in the meanwhile, on 25 11967, the respondent had filed an appeal (C. M. A. 9/67, Sub Court, Badagara) later on transferred to the file of the Appellate Authority (Land Reforms). Kozhikode as AA/Kozhikode/I 5/70. On 12 51967 the petitioner filed I. A. No. 11/67 on the file of the Land Tribunal for extension of time for the deposit of the amount as directed in the order of resumption. No notice of this petition was ordered to the respondent. From the subsequent conduct of the parties it would appear that the respondent had no knowledge about this petition till its disposal. On 14-6-1967 the Land Tribunal passed an order staying I. A. 11/67 under Ordinance 4/67 which was subsequently replaced by Act 9 of 1967. The stay continued till 1511970 on which date the Land Tribunal vacated the stay and posted the petition for enquiry to 16 21970. The order passed by the Land Tribunal on 16 21970 is to this effect: "The counsel for the petitioner represents that an appeal filed against the order in the main application filed by the respondent is pending. Hence, the petitioner may renew the application after the appeal is over. Hence dismissed." The appeal referred to above, as has already been stated, was dismissed on 21111970. Thereafter on 191 1971 the petitioner filed I. A. No. 5/71 purporting to be one under S.151 of the Code of Civil Procedure for condoning the delay in making the deposit of the amount ordered to be made in the resumption order dated 17121966. The respondent opposed the application on various grounds. However, on 10 31971 the Land Tribunal passed an order extending the time for deposit of the amount till 20 31971. It is fairly clear that the Land Tribunal happened to pass the impugned order under a misconception. The discussion by the Land Tribunal begins with the following sentence: "It is common ground that the petitioner had filed an application for extension of time before expiry of the period of two months prescribed in the order allowing resumption." The statutory period allowed under R.10 is only thirty days and that period expired on 17 11967. The discussion by the Land Tribunal begins with the following sentence: "It is common ground that the petitioner had filed an application for extension of time before expiry of the period of two months prescribed in the order allowing resumption." The statutory period allowed under R.10 is only thirty days and that period expired on 17 11967. I. A. No. 11/67 was filed by the petitioner only on 12 51967, nearly four months after the expiry of the period prescribed by the rules. Fop one thing, it is nearly after five months from the date of order allowing resumption that this petition for extension of time was filed; for another thing, the period allowed for the deposit is not two months, but only one month. The Land Tribunal passed the impugned order overlooking the relevant provision contained in the rules and also committing a great mistake in regard to facts. 5. The respondent took up the matter in appeal and has succeeded in A.A./Kozhikode/16/71, which was disposed of by a rather elaborate judgment dated 313 1971. The Appellate Authority took the view that inasmuch as the period fixed by the statute had run out, the Land Tribunal was not competent to grant an extension of time for making the deposit. 6. Sri. T. M. Krishnan Nambiar, learned counsel appearing for the revision petitioner, submits that the judgment of the Appellate Authority is illegal and is liable to be set aside. It was pointed out that the decision of the Full Bench of this Court in K.C. M. Ltd. v. Padmanabha Pillai (1957 KLT.1175) does not hold good in view of the subsequent decision of the Supreme Court in Mahanth Ram Das v. Ganga Das (AIR. 1961 SC. 882). In 1957 KLT.1175 it was laid down by this Court that a court has no power under S.148 to extend a period fixed by statute and not fixed or granted by the court. I.A. No. 5/71, though purported to be filed under S.151 CPC., was treated to be one under S.22(3) of Act 1 of 1964. The crucial point for decision in this case is whether under sub-s. (3) of S.22 of Act 1/64, which is similar to S.148 CPC., the Land Tribunal has power to extend the time for compliance with the direction contained in an order passed under sub-s. (2) of S.22 of the Act. The crucial point for decision in this case is whether under sub-s. (3) of S.22 of Act 1/64, which is similar to S.148 CPC., the Land Tribunal has power to extend the time for compliance with the direction contained in an order passed under sub-s. (2) of S.22 of the Act. In this connection it is profitable to note the consequence that would follow if the deposit as directed is not made. Sub-s. (8) of S.22 lays down, that "(8) Where a landlord fails to deposit the amounts in accordance with the directions of the Land Tribunal, the order of resumption shall be treated as cancelled and the landlord shall have no further right for resumption." 7. Sri. T. P. Kelu Nambiar, learned counsel for the respondent, points out that the facts and circumstances of the Supreme Court case to which reference was made by counsel appearing for the revision petitioner, are entirely different from the facts and circumstances of this case. In the Supreme Court case the appellant before that Court was the plaintiff in a suit who lost his case in the trial court, but succeeded in the appellate court. While granting a decree in favour of the appellant, the Patna High Court had directed the appellant to pay additional court-fee on ad valorem basis within three months from the date on which his counsel received intimation about the actual amount to be paid. The period stipulated by the court expired on 8th July, 1954. He filed a petition on 8-7-1954 stating that out of the court-fee of Rs. 1989-8-0 he was ready to pay Rs. 1400/- that day and that for the balance be may be given a month's time. Though bis Advocate bad mentioned that the petition may be sent up for orders the same day, as no Division Bench was sitting that day and the office could not send it up. Later on, the Court dismissed the petition on the ground that by virtue of the order of the Bench dated the 30th March 1954 the appeal has already stood dismissed, as the amount was not paid within the time given. Later on, the Court dismissed the petition on the ground that by virtue of the order of the Bench dated the 30th March 1954 the appeal has already stood dismissed, as the amount was not paid within the time given. The Supreme Court ultimately granted extension of time holding that S.148,149 and 151 of the Code of Civil Procedure would confer sufficient power on the High Court to grant relief to the appellant, holding that the appellant could not be blamed for not having obtained an extension of the time granted under the order of the Court before the expiry of the period stipulated inasmuch as he had applied for the extension before the time had actually run out. It is important to note that in the Supreme Court case the amount ordered to be deposited represented additional court-fee to be paid and the time was fixed by the Court, not by the statute. This makes all the difference, and the dictum laid down by the Supreme Court is not applicable to this case where the period for deposit is fixed by the statute itself. The learned Counsel appearing for the revision petitioner has not shown any authority for the proposition that by the application of S.148 C.P.C., or any provision similar to that, the time fixed by the statute can be extended by the court. 8. The learned counsel appearing for the revision petitioner has drawn my attention to R.130 of the Kerala Land Reforms (Tenancy) Rules, 1970, which reads as follows: "Extension of time. Where any period is fixed or granted by the Land Tribunal or the appellate authority or the Land Board or any other authority or officer for the doing of any act prescribed or allowed by these rules, it or be may, in its or his discretion, from the time to time, extend, such period even though the period originally fixed or granted may have expired." According to the learned counsel, R.130 of the KLR. R.1970 which corresponds to R.102 of the KLR. R.1964, clothes the Land Tribunal with ample power to grant extension of time even after the expiry of the period originally fixed. I do not think that the power conferred on the Land Tribunal under R.130 is so wide enough as to extend the time that has been prescribed by the statute. R.1970 which corresponds to R.102 of the KLR. R.1964, clothes the Land Tribunal with ample power to grant extension of time even after the expiry of the period originally fixed. I do not think that the power conferred on the Land Tribunal under R.130 is so wide enough as to extend the time that has been prescribed by the statute. The rule can have application only to the time fixed or granted by the Court, not by the statute. R.128 to 137 are the rules of procedure, the rules relating to resumption are contained in R.6 to 11 and they are the rules framed under S.13 and 14 to 22 of the Act. Sub-rule (2) of R.11 specifically lays down that the amounts shall be deposited with the Land Tribunal within a period of 30 days from the date of the order. 9. It is further argued that inasmuch as an appeal was pending, the period fixed should be construed to run only from the date on which the appeal was disposed of, as the appeal is a continuation of the proceedings before the Land Tribunal. In my view, this argument is not sound. Invoking the power under Or. 41, R.33 of the Code of Civil Procedure, probably the appellate authority could have extended the time if a prayer in that behalf was made before the appeal was disposed of. That has not been done and the order of resumption not having been kept alive, it is not open for the revision petitioner to contend that the time for the fulfilment of the condition laid down by the Land Tribunal runs only from the date on which the appeal was disposed of. It is also to be noted that the petitioner did not deposit the amount within one month after the disposal of the appeal. 10. The further submission of the learned counsel is that in view of the fact that the Land Tribunal bad directed the Revenue Inspector to reassess the value of improvements to which the respondent is entitled, it must be presumed that the final order by the Land Tribunal has not been passed till the reassessment of the value of improvements. I am told that the Revenue Inspector actually assessed the value again and that the respondent deposited the difference between the amount refixed by the Revenue Inspector and the sum of Rs. I am told that the Revenue Inspector actually assessed the value again and that the respondent deposited the difference between the amount refixed by the Revenue Inspector and the sum of Rs. 266/-previously deposited In terms of the original assessment of the value of improvements. I have not been shown any provision which requires that there should be a reassessment of the value of improvements in cases where the order has been taken up in appeal. S.22 (2) of Act 1 of 1964 contemplates only one order and there is no scope for contending that, because the Land Tribunal has chosen to direct the Revenue Inspector to reassess the value of improvements, the order passed under S.22 (4) is not a final order. 11. The last submission of the learned counsel is that this being a matter which was pending at the time of the coming into force of Act 35 of 1969, the transitory provisions contained in S.108(3) of Act 35 of 1969 should govern the hearing and disposal of the proceedings. Sub-sections (2) and (7) of S.22 of Act 1 of 1964 have been substantially amended by Act 35 of 1969 Sub-section (4) enables the tenant to have the option as to the portion of the holding which he likes to retain with him. Before the amendment, the portion to be resumed was left to the discretion of the Land Tribunal taking, of course, into consideration the nature, fertility and other conditions of the portion which may be allowed to be resumed. Sub-section (7), as it originally stood, provided that an order passed under S.22 is to be executed through the court as if the order were a decree passed by it. The amended provision is to the effect that where the landlord deposits the amounts in accordance with the directions of the Land Tribunal, the Land Tribunal shall put the landlord in possession of the land allowed to be resumed. The learned counsel submits that in view of the fact that the tenant had not exercised the option in regard to the portion which he wanted to retain with him in terms of the present Act, a fresh look at the matter and a fresh disposal are necessary. The learned counsel submits that in view of the fact that the tenant had not exercised the option in regard to the portion which he wanted to retain with him in terms of the present Act, a fresh look at the matter and a fresh disposal are necessary. It is also argued that the argument that after the passing of the order under S.22 (2) the Land Tribunal becomes functus officio cannot be correct inasmuch as under the amended provisions of the Act the execution also has to be through the Land Tribunal. I do not think there is any force in these contentions. The main question is whether the order for resumption passed by the Land Tribunal was surviving on the date on which Act 35 of 1969 came into force. If it had already ceased to exist, or stood cancelled in terms of subsection (8) of S.22, there is no question of the revival of that order by applying the amended provisions of the Act. It has also to be noted that the right of option in sub-section (4) of S.22 is in favour of the tenant and the landlord cannot urge that as a ground to get the order, which stands cancelled revived. It is also doubtful whether at the stage of execution, the Land Tribunal has the right to go behind its order of resumption, because under the amended Act execution also has to to be made by the Land Tribunal itself. A pronouncement on the scope and extent of the power of the Land Tribunal in execution is not necessary in this case, as in my view the order of resumption passed by the Land Tribunal had ceased to be in force after 17 11967, long before Act 35 of 1969 came into force. 12. It is regretable that the petitioner who had obtained an order of resumption in her favour could not reap the fruits of the order, because of her own laches. Though the Court can sympathise with her, it cannot allow its decision to be affected by such considerations. 12. It is regretable that the petitioner who had obtained an order of resumption in her favour could not reap the fruits of the order, because of her own laches. Though the Court can sympathise with her, it cannot allow its decision to be affected by such considerations. I am clear in my mind that, when the petitioner failed to deposit the amount within the period of thirty days from the date of the order of resumption in terms of R.10 of the Kerala Land Reforms (Tenancy) Rules, 1964 (which substantially corresponds to R.11 of the Kerala Land Reforms (Tenancy) Rule, 1970) as directed by the Land Tribunal, by the operation of sub-s (8) of S.22 of the Act the order of resumption would stand automatically cancelled unless by invoking the power of the Land Tribunal under sub-s. (3) of S.22 an extension of time is granted for the fulfilment of the condition before the expiry of the period stipulated by the statute, and that the Land Tribunal thereafter has no power to revive the order that stood cancelled or to grant extension of time or to condone the delay in depositing the amount. My conclusion, therefore, is that the judgment of the appellate authority allowing the appeal and dismissing the order passed by the Land Tribunal in I. A. No. 5/71 is correct and it does not call for any interference by this court in this revision petition. The revision is accordingly dismissed, but in the circumstances of the case I make no order as to costs.