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1982 DIGILAW 23 (KER)

MOHAMMED v. IALUK LAND BOARD

1982-01-20

P.JANAKI AMMA

body1982
Judgment :- 1. This application is filed by the petitioner for condoning the delay in filing the revision petition against the order of the Taluk Land Board, Thaliparamba in TLB.114/76 dated 25-9-1979. The petitioner filed an application in Form No 6, Land Reforms (Ceiling) Rules, seeking to set aside an order under S.85(5) of the Land Reforms Act passed by the Taluk Land Board in TLB.114/76. The arguments were heard in that petition on 19-6-1979 and the case was adjourned for orders. The date on which orders were to be pronounced was not fixed then or intimated later. The order was pronounced on 25-9-1979. The petitioner did not also get a copy of the order forwarded to him. On 2-11-1979 he sent a petition by registered post informing the Taluk Land Board about the non-receipt of the copy of the order and requesting for a copy. The petitioner also made a request for a certified copy of the order and enclosed copying papers for the purpose. The petition was received by the Taluk Land Board on 3-11-1979. But neither a copy of the order was served on him, nor was he given a certified copy. On 4-8-1981 the petitioner made enquiries at the Taluk Land Board office and came to know that the application for copy stood dismissed. On a fresh application being filed a certified copy was granted to him on 11-3-1981. The petitioner filed the revision on 31-8-1981 along with the present petition for condoning the delay. 2. The petition is opposed. In the counter affidavit filed on behalf of the State it is stated that there are no sufficient reasons for condoning the delay. According to the affidavit filed on behalf of the State, a copy of the order dated 25-9-1979 was forwarded to the petitioner through the Tahsildar, Thaliparamba on 16-10-1979. It is stated that no copy was supplied to him as per the request made in the first petition in as much as a copy had already been despatched to the petitioner through the Tahsildar, Thaliparamba. 3. The argument put forward on behalf of the State is that since the proceedings of the Taluk Land Board are being conducted openly the petitioner must be deemed to be aware of the order passed and that it was not incumbent on the Taluk Land Board to serve a copy of the order. 3. The argument put forward on behalf of the State is that since the proceedings of the Taluk Land Board are being conducted openly the petitioner must be deemed to be aware of the order passed and that it was not incumbent on the Taluk Land Board to serve a copy of the order. Reference is made to R.98 of the Kerala Land Reforms (Tenancy) Rules, which directs that the sittings of the Land Board and Taluk Land Board shall be held openly and also to R.99 to 103, which relate to the maintenance of posting book, diary registers etc. The argument is that the procedure contemplated under the rules is similar to that in a Court of law and therefore there is no necessity to communicate the order of the Taluk Land Board to the petitioner. In other words, the contention put forward is that the period of limitation fixed for an appeal or revision should be from the date of the order and not from the date when the order is communicated to the petitioner. 4. It is not disputed that in appropriate cases this Court is competent to extend the period of limitation fixed under the rules S.108 of the Act makes the provisions of S.5 of the Limitation Act apply to all proceedings under the Act. Under R.94 of the Land Reforms (Tenancy) Rules any petition to the High Court from a final order passed by the Taluk Land Board should be preferred within a period of 45 days of the date of the order against which the petition is preferred. In computing the time prescribed the time requisite for obtaining an attested copy of the order should be excluded. From the above provision if would appear that the limitation should start from the date of the order. Reference may in this connection be made to Order XX Rule I of the Code of Civil Procedure, which directs that the Court should pronounce judgment in open Court either at once or as may be practicable on a future date and that when the judgment is pronounced on a future date the Court should fix a day for that purpose, of which due notice should be given to the parties or the pleaders. A similar provision regarding prior notice is absent in the Land Reforms Act and the Rules made thereunder. A similar provision regarding prior notice is absent in the Land Reforms Act and the Rules made thereunder. On the other hand, S.86 (2) of the Act is to the effect that on receipt of the order of the Taluk Land Board under sub-section a) the person concerned should make the surrender demanded in such manner as may be prescribed. This indicates that the Act contemplates a service of the order on the person concerned. Reference may also be made to R.103-A, which says that every final order of the Taluk Land Board should be written by the Chairman of the Taluk Land Board and circulated to other members, who may either agree to the order or write separate order agreeing or disagreeing to the order written by the Chairman. Where the members of the Taluk Land Board differ in opinion on any point, the point should be decided in accordance with opinion of the majority. The said rule does not make mention of an open pronouncement of the order after due notice to the parties In other words, there is no provision in the Act and the rules to enable the person affected by the order to know about the order, unless it is served on him. 5. R.94 (3) which provides for the exclusion of the time requisite for obtaining an attested copy of the order would suggest that the period of forty-five days should be reckoned from the date of the order. But in the absence of a provision regarding prior notice the affected party may not know when the order is pronounced. No doubt, even in the absence of a rule it is open to the Taluk Land Board to give prior notice of the date on which the order is to be pronounced; but there is no case for the respondent that any such practice exists. Absence of a provision similar to Order XX R.1 of the Code of Civil Procedure is a lacuna in the rules. It was under similar circumstances that the Supreme Court held in H. Chandra R. Singh v. Deputy Land Acquisition Officer, AIR. 1961 SC 1500, and Madan Lal v. Stale of U. P., AIR. 1975 SC. Absence of a provision similar to Order XX R.1 of the Code of Civil Procedure is a lacuna in the rules. It was under similar circumstances that the Supreme Court held in H. Chandra R. Singh v. Deputy Land Acquisition Officer, AIR. 1961 SC 1500, and Madan Lal v. Stale of U. P., AIR. 1975 SC. 2085, that the expression "date of the order" should mean the date on which the order was communicated to the party or the party aggrieved had the opportunity of knowing the order and therefore must be presumed to have had knowledge of the order. The above decisions have been followed by me in Biyatta Attabi v. Muthukoya,1977 KLT. 50. The Supreme Court had occasion to consider this aspect in a recent case, Asst Transport Commissioner v. NandSingh, AIR. 1980 SC. 15, arising under the U. P. Transport Taxation Act. The respondent in that case moved for exemption of tax in respect of his motor vehicle for a certain period. An appeal against the order was to be filed within 30 days of the order. The letter communicating the order was dated October 20/24,1964. The respondent received the order on October 29, 1964. If the period of 30 days was to commence from 24th October, the appeal was beyond time; but it was within time if the period was to start from 29th October The High Court followed the decision in Chandra R. Singh v. Deputy Land Acquisition Officer, AIR. 1961 SC. 1500, and held that the appeal was within time. The Supreme Court observed: "It is plain that mere writing an order in the file kept in the Office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. 1961 SC. 1500, and held that the appeal was within time. The Supreme Court observed: "It is plain that mere writing an order in the file kept in the Office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. The order must be communicated either directly or constructi -vely in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order In a given case the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order or the date of the order but ordinarily and generally speaking, the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not." The above reasoning applies in the instant case. 6. There is no document in the present case to show that the petitioner has been served with the order. Although there is an endorsement in the order that a copy of the order was being forwarded to the petitioner through the Tahsildar it has not been made out that a copy was actually served on him. There is no indication to show that on 19 61979 when the case was finally heard, it was posted for orders to 25-9-1979. It is also not made out that the order was pronounced after prior notification or issue of notice to the petitioner. Therefore there is no material to find out that the petitioner had opportunity to know that an order had been passed on 25-9-1979. The facts and circumstances of the case would go to show that the petitioner bad been taking steps to get at a copy of the order. The non-receipt of a copy was not due to any fault of his. Even assuming that the fact that an order had been passed became known to the petitioner sometime prior to 11-8-1981, in the absence of an open pronouncement of the order, it could not be presumed that he was aware of the contents of the order. He could have challenged the order only on getting a copy of the order. Even assuming that the fact that an order had been passed became known to the petitioner sometime prior to 11-8-1981, in the absence of an open pronouncement of the order, it could not be presumed that he was aware of the contents of the order. He could have challenged the order only on getting a copy of the order. Therefore, this is a fit case where the delay in filing the petition should be condoned invoking the provisions contained in S.5 of the Limitation Act. The petition is accordingly allowed. Allowed.