Research › Browse › Judgment

Kerala High Court · body

1978 DIGILAW 227 (KER)

SIVARAJAN v. NARAYANAN

1978-08-25

S.K.KADER, V.P.GOPALAN NAMBIYAR

body1978
Judgment :- 1. The appeal is against the judgment of the learned judge who allowed O. P. No. 2968 of 1974 holding that the Land Tribunal had no competence to entertain or decide the application for shifting the kudikidappu under S.77 of the Act, after the purchase certificate was issued under S.80-C of the Act in the circumstances and facts to be noticed presently. The writ petitioner filed an application for purchase of the kudikidappu rights under S, 80-B of the Act on 17 31972 (O A. No. 358 of 1972). By an ex parte order, the application was allowed on 7 61972. The respondent in the writ petition who is the appellant before us, filed an appeal A. A. No. 1301 of 1972 on 14-8-1972. That appeal was allowed on 20 81973. Pending appeal, a certificate of purchase under S.80-C of the Act was issued on 2nd September 1972 Meanwhile, the Landowner (appellant) had filed on 18 61973, O. A. No. 139 of 1973 to shift the kudikidappu under S.77 of the Act. The said, application was allowed by Ext. R2 order dated 24-1-1974. A petition for review was filed. That application was dismissed and a revised order Ext. P1 was passed on 15 4 974. That revised order directed the Land-lord to produce the title deed in respect of the 3 cents of land and to remit the shifting charges and further directed the kudikidappukaran to shift to the site provided for. It was to quash this order that the writ petition was filed. 2. The main contention that was urged in the writ petition was that, as the purchase certificate was issued on 2 91972, the same will operate as a bar to the application for shifting. This contention found favour with the learned Judge. The position is now canvassed before us. 3. As the question raised is important, and will have far-reaching effects, we issued notice to the Advocate-General, and we are grateful to him for bis assistance. 4. S.77 of the Land Reforms Act. as it stood at the material time contained a proviso to Clause.2 of the Section, which we may extract: 77. 3. As the question raised is important, and will have far-reaching effects, we issued notice to the Advocate-General, and we are grateful to him for bis assistance. 4. S.77 of the Land Reforms Act. as it stood at the material time contained a proviso to Clause.2 of the Section, which we may extract: 77. Procedure to enforce shifting of kudikidappu in certain eases xx (2) The Land Tribunal, after such enquiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions mentioned in sub-s. (2) or sub-s. (4) as the case may be, of S.75, may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date as may be specified in the order: Provided that no such order shall be passed in any case where a certificate of purchase has been issued under S.80C is respect of the kudikidappu. (emphasis supplied). S. 80B which deals with the procedure for purchase of the kudikidappu contains a proviso at the end of sub-s. (3), which, at the relevant time, read: "Provided that where an application under sub-S. (1) of S.77 in respect of the kudikidappu is pending, the Land Tribunal shall not pass any order under this sub-section, before the disposal of that application " (emphasis supplied) Sub-s. (1) of S.80-C is also material and the same reads: "80 C. Deposit of purchase p rice and issue of certificate of purchase (1) Where the kudikidappukaran is liable to pay his share of the purchase price, he shall deposit the first instalment thereat with the Land Tribunal within a period of six months from the date on which the order of the Land Tribunal under sub-S. (3) of S.80 B has become final or within such further period not exceeding six months as may be allowed by the Land Tribunal for reasons to be recorded." (emphasis supplied). 5. A combined reading of the Sections extracted, leads to this result: Under the proviso to S 77 (2) it is only the issuance of a purchase certificate under S.80-C that will operate as a bar against the passing of an order for shifting the kudikidappu under S.77. 5. A combined reading of the Sections extracted, leads to this result: Under the proviso to S 77 (2) it is only the issuance of a purchase certificate under S.80-C that will operate as a bar against the passing of an order for shifting the kudikidappu under S.77. Under the proviso to sub-s. (3) of S.80-B, there is an embargo against passing an order on an application for purchase of kudikidappu during the pendency of an application for shifting under S.77; and under sub-s.(1) of S.80-C, the obligation to deposit the first instalment of the purchase price is only within a period of six months from the date on which the order of the Land Tribunal under S 80-B has become final. The argument of counsel for the appellant is, that it is only if the order directing the purchase of kudikidappu rights has become final and conclusive that it can have the effect of barring an application for shifting the kudikidappu under S.77 of the Act. We think there is force in this contention. The position thus taken up was supported by the learned Advocate General to whom we issued notice. After careful consideration, we accept the said contention. Any other way of construing or interrelating the Sections seems to us to be productive of injustice. 6. The learned Advocate-General invited our attention to S.102(4) of the Act which reads: "102. Appeal to appellate authority - xx (4) Where there has been any modification in appeal from any decision or order of the Land Tribunal, such decision or order shall be modified accordingly." The provision for a modification of the orders passed by the Land Tribunal to give effect to any decision in appeal, only strengthens our conclusion. In view of the said provision, we are not much impressed by the argument advanced by counsel for the respondent that the reversal of the order directing the issuance of the purchase certificate by the appellate authority, need not necessarily result in the cancellation of the certificate which had already been granted. He relied upon the decision of the Supreme Court in Janak Raj v. Gurdial Singh (AIR 1967 SC. 608) to the effect that a reversal of the order directing the sale of the properties, would not necessarily invalidate the sale actually held. In view of the provisions noticed already, the decision is unhelpful. 7. He relied upon the decision of the Supreme Court in Janak Raj v. Gurdial Singh (AIR 1967 SC. 608) to the effect that a reversal of the order directing the sale of the properties, would not necessarily invalidate the sale actually held. In view of the provisions noticed already, the decision is unhelpful. 7. The basic postulate of the Sections seems to be that a purchase certificate issued after the proceedings had become final, alone will have the effect of barring an application for shifting a kudikidappu. In the instant case, the issue of the purchase certificate had not become final, as the same was the subject-matter to appeal to the appellate authority, and that authority had in fact allowed the appeal. 8. Counsel for the respondent stated that the need or the bona fide requirement of the landlord for shifting under S.77 of the Act has received only very cursory treatment at the bands of the Tribunal, both in Ext. R2 and and in Ext. P1. In addition, he submitted that these orders were passed in 1974, and that, since the date of these orders, there have been several decisions of this Court which have expounded and dealt with the considerations by which the bona fide requirement of the landlord for purposes of shifting has to be adjudged. In particular, he referred to a Full Bench decision of this Court in Korumban v. Land Tribunal, Tellichery & Others (1976 KLT. 765). There have been many subsequent decisions too which have dealt with the position. It is therefore but fair and proper that the Tribunal reconsiders the position in regard to bona fide requirement in the light of the principles expounded by the recent judicial decisions. While therefore allowing the appeal and setting aside the order of the Land Tribunal, and holding that the issue of the purchase certificate will not bar the application for shifting the kudikidappu, we remand the said application for shifting back to the Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment, particularly with reference to the question of the bona fide requirement of the landlord. There will be no order as to costs. Allowed.