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1979 DIGILAW 5 (KER)

MATHEVANKOCHU v. MADHAVAN

1979-01-05

P.NARAYANA PILLAI, S.K.KADER

body1979
Judgment :- 1. In a proceeding for assignment of the right, title and interest of the landlord in respect of certain items of properties which admittedly belonged to a tarwad the revision petitioner, one of the members of the said tarwad, filed an application under S.72F(4) of the Kerala Land Reforms Act, 1963 (Act I of 1964), hereinafter called the Act, to get himself impleaded on the ground that he is interested in the land. Although no objections are seen to have been filed to this application by the respondents, the Land Tribunal dismissed the application on the ground that there are no special circumstances entitling the petitioner to get himself impleaded. This order was challenged in appeal and the Appellate Authority (Land Reforms) Alleppey, dismissed: the appeal on the ground that the order in question is not appealable under S.102 of the Act. It is this order that is challenged in revision. 2. The fact that the petitioner is a member of the tarwad to which the property belongs is not disputed and as such he is a person interested in the land which is the subject-matter of the proceeding and he is entitled to apply, for getting himself impleaded under S.72F(4) of the Act. The Appellate Authority also found that he is a member of the jenmi family and that he has a right to get himself impleaded. 3. The only question that arises for consideration, therefore, in this revision petition is whether the order dismissing the application filed by the petitioner under S.72F(4) is appealable or not Under S.102 of the Act the Government or any person aggrieved by any order of the Land Tribunal under S.72F of the Act is entitled to file an appeal against such order, within such time as may be prescribed, to the Appellate Authority. S.72F deals with determination of the compensation and purchase price in an application filed for assignment of the right, title and interest of the land owner and the intermediaries, if any, in respect of a holding or part of a holding. No doubt the last order under S, 72F is to be passed under sub-section (5) of that section. Prior to the passing of this order under sub-section 5 of S.72F, the Tribunal has to pass order under R.8, 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970. No doubt the last order under S, 72F is to be passed under sub-section (5) of that section. Prior to the passing of this order under sub-section 5 of S.72F, the Tribunal has to pass order under R.8, 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970. Under R.8 of the said Rules, an application under sub-section (4) of S.72F shall be in Form F and shall be presented before the date of the order of the Land Tribunal under sub-section (5) of that section. Sub-rule (2) of R.8 clearly states that when an application is presented before the date prescribed in sub-rule (1), the Land Tribunal shall implead the applicant as a party to the proceedings before it in respect of the land to which the application relates and thereafter he may be allowed to file a statement duly verified by him setting forth his claims and objections regarding the assignment of the right, title and interest of the land owner and intermediaries in respect of that land to the cultivating tenant or any matter connected therewith. Under this rule, it is imperative that a person claiming interest in the land who has applied under sub-section (4) of S.72F be impleaded. In the case on hand, the Land Tribunal after hearing both parties dismissed the application of the petitioner. This order dismissing the application filed by the petitioner has deprived him of a valuable right conferred under S 72F(4) to participate and substantiate his claims in the proceedings in question. An order refusing an application filed under sub-section (4) of S.72F of a person interested in the land is not in the nature an interlocutory. order and is certainly an order which affects the right, title and interest of the person. 4. The expression used in S.102 of the Act is 'any order passed under S.72F. Though the words 'any order' appearing in the section are wide, a limited construction has to be put on these words, as it could not have been the intention of the legislature to give a right of appeal against interlocutory orders of merely procedural nature which might result in harassment of parties with endless expenses and delay. The object of S.102 is only to confer a right of appeal to a party aggrieved by an order which affects his right or liability. The object of S.102 is only to confer a right of appeal to a party aggrieved by an order which affects his right or liability. An order rejecting an application of a party interested in the land filed under S.72F(4) of the Act, which affects his right, according to us, is an order passed under S.72F of the Act which is appealable under S.102 of the Act. 5. The reasoning in this regard finds support in Central Bank of India v. Gokul Chand (AIR. 1967 SC. 799; and Shankartal Aggarwal v. Shankar-lal Poddar (AIR. 1965 SC. 507). In the Central Bank of India's case (AIR. 1967 SC. 799) the question that arose for consideration was whether an order refusing to issue a commission to inspect the suit property and prepare a plan of the same was appealable or not. It was a case which arose under the Delhi Rent Control Act. 1958 (Act 59 of 1958). Under S.38 of the, said Act, an appeal lay from every order of the Controller made under the said Act to the Rent Control Tribunal. In Shankarlal Aggarwal's case (AIR 1965 SC. 507) the Supreme Court was construing a similar provision appearing in S.202 of the Indian Companies Act, 1913. S.202 of the Indian Companies Act conferred a right of appeal 'from any order or decision made or given in the matter of the winding up of a company by the court'. The Suprem Court observed, though the words 'order or decision' occurring in S.202 of the said Act were wide, would exclude merely procedural orders or those which do not affect the rights and liabilities of parties. The Suprem Court observed, though the words 'order or decision' occurring in S.202 of the said Act were wide, would exclude merely procedural orders or those which do not affect the rights and liabilities of parties. Following this decision it was held in Central Bank of India's case that the words 'every order' of the Controller made under the Act used in S.38(1) of the Delhi Rent Control Act, though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties, that orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question are all interlocutory orders which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and they regulate the procedure only and do not relate to the right or liability of the parties. But it was further held that 'even an interlocutory order passed under S.37(2) is an order passed under that Act and is subject to appeal under S.38(1) provided it affects some right or liability of any party.' 6. The counsel for the respondents relied on two decisions of this Court in Paul v. Chakki (1972 KLT. 437) and Alavi v. Appellate Authority, Land Reforms (1972 KLT. 648) in support of his contention that the order in question is interlocutory in nature and is not one coming under S.72F of the Act and is therefore appealable. He also contended that the proper section under which the applicant could have applied is S.104 of the Act and on that ground also it cannot be said that this is an order under S.72F of the Act. It is clear from the records available in the case that it was under S.72F (4) that the petitioner filed an application to get himself impleaded in the proceedings. The respondents had no case before the Land Tribunal that this was not an application under S.72F (4) of the Act. The decisions cited have no application to the facts of the present case. In Alavi's case (1972 KLT. The respondents had no case before the Land Tribunal that this was not an application under S.72F (4) of the Act. The decisions cited have no application to the facts of the present case. In Alavi's case (1972 KLT. 648) this Court was dealing with an interlocutory order passed under R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970, where the question for consideration was whether an order of injunction passed during the pendency of the proceeding was an order passed under S.72F of the Act and was appealable under S.102 of the Act. There it was held that in the nature of the procedure laid down in S.72F and the powers of the Land Tribunal conferred, there is no scope to pass an order of injunction under S.72F of the Act. In Paul's case (1972 KLT. 437), what came up for decision was whether an order passed by the Land Tribunal in an application for the purchase of kudikidappu right filed under S.80B of the Act impleading the husband of the applicant was appealable or not. It was contended in that case that the order in question being one passed in an application under S.80B of the Act, it was appealable under S.102. The respondent in that application resisted the application contending, inter alia, that the petitioner had no locus standi to file the application in as much as it was the petitioner's husband who had executed the 'cooli charthu' in respect of the property. The Land Tribunal even without receiving any application from any party for the purpose ordered impleadment of the husband of the applicant as an additional party, it was that order that was challenged before the Appellate Authority which dismissed the appeal holding that the appeal was not maintainable. There is no provision similar to subsection (4) of S.72F in S.80B. In the result this revision petition is allowed, the orders of the Appellate Authority and the Land Tribunal are set aside, the application filed by the petitioner under S.72F (4) is allowed and he is impleaded as a party to the proceeding and the case is sent back to the Land Tribunal for disposal afresh in accordance with law. No costs in the circumstances. Allowed.