GOPALAN ADIYODI v. STATE OF KERALA — 1983 DIGILAW 220 (KER)

Judgment :- 1. Respondents 3 and 4 had filed I.A. No. 72/82 for the restoration of their application O.A. No. 1482 of 1977 which was dismissed by the 2nd respondent, Land Tribunal (Deputy Collector), Kozhikode, for default on 20-7-1982 because of the absence of the applicants and their counsel. The 2nd respondent by Ext. P1 order dated 15-2-1983 allowed the application and restored the original application to the file. Ext. P2 is the copy of an application filed by the petitioners before the Kerala Land Board, Trivandrum, purporting to be under S.101 (2)(d) of the Kerala Land Reforms Act (the Act) for setting aside Ext. P1 order and transferring the proceedings in O.A. No. 1482 of 1977 to another Land Tribunal in Badagara Taluk, Kozhikode District. Ext. P3 is the copy of the order dated 8-6-1983 by which the Kerala Land Board dismissed Ext. P2 application. It is aggrieved by Exts. P1 and P3 orders of the Land Tribunal and the Land Board respectively, this writ petition has been filed. 2. The point stressed before me by Sri Siby Mathew, the counsel for the petitioners, is that Ext. P1 order restoring the original application which was dismissed for default was without jurisdiction, in asmuchas the specifically enumerated powers conferred on the Land Tribunal under S.101 of the Act do not include the power to restore an original application dismissed for default. Reliance was placed by Sri Siby Mathew on the decision of Gopalan Nambiyar J., (as he then was) in Kuttappan v. Thressia (1973 KLT. 521) in which it was held: "the Land Tribunal being essentially a statutory Tribunal with specifically enumerated powers, cannot have the power to set aside an ex parte decree or order." It is not necessary for me to examine the correctness of that decision inas-muchas the power to set aside an ex parte order stands on a different footing from the power to restore an application dismissed for default. 3. Sri Siby Mathew also drew my attention to the decision of Chandrasekhara Menon J., in Vamakshy v. Executive Officer, Ochira Panchayat (1982 KLT. 185). In that decision it was observed: "No doubt, as is well established, by a wrong decision on a jurisdictional factor, a Tribunal of limited jurisdiction cannot give itself jurisdiction. The correctness of the decision on the same can be questioned inappropriate proceedings. 185). In that decision it was observed: "No doubt, as is well established, by a wrong decision on a jurisdictional factor, a Tribunal of limited jurisdiction cannot give itself jurisdiction. The correctness of the decision on the same can be questioned inappropriate proceedings. It can be challenged before this Court under Art.226 or 227." This submission evidently is based on the assumption that the Land Tribunal is devoid of jurisdiction to entertain and decide an application for restoration of an original application dismissed for default. 4. One other decision relied on by Sri Siby Mathew is the Division Bench ruling in Dhanalakshmi Bank v. Parameswara Menon (1980 KLT. 310) where, construing the provisions of S.33 and 33A of the Industrial Disputes Act, Eradi J., (as he then was) observed as follows: "S. 33A does not, in our opinion, contemplate the grant of such anticipatory relief for prevention of any apprehended contravention of S.33. If and when it is established before the Tribunal that there has been, in fact, a contravention of S.33 by the employer, the Tribunal will, in such event pass appropriate orders granting effective relief to the workmen so as to obliterate the consequences that may result from the act of the management performed in contravention of S.33. It is only to this extent that the jurisdiction of S.33A stretches. The grant of an interim relief in the nature of injunction is not within the competence of the Tribunal since no such power has been conferred on it by any of the provisions of the Act." This observation is made in the context of the fact of the case considered in the scheme of the Industrial Disputes Act. There is also no comparison between the exercise of power to grant injunction and that of restoring an original application dismissed for default. 5. In Ponnu v. Lakshmanan (1981 KLT. 881) Balakrishna Menon J., held that the Land Tribunal has no power under R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970, to implead additional parties except as regards legal representatives of a deceased party in the proceedings before it. Here again, it is not necessary to examine the correctness of the decision, in-asmuchas the power to implead additional parties is not the same as that of restoring an original application dismissed for default. 6. Here again, it is not necessary to examine the correctness of the decision, in-asmuchas the power to implead additional parties is not the same as that of restoring an original application dismissed for default. 6. Sri Siby Mathew also relied on the observations of Janaki Amina J., in Asher v. Rant (1979 KLT. 260). That was a case falling under the Kerala Buildings (Lease and Rent Control) Act, 1965. It was held in that case that S.23 confers on the Rent Control Court and the Appellate Authority the power under the Code of Civil Procedure only in matters mentioned in that section, and that provisions of Order IX, R.8 or Order IX, R.9 of the C.P.C., not having been made specifically applicable, in proceedings under the said Act the application dismissed for default of appearance could not be restored in the absence of any provision in that behalf in the said Act. 7. In a later decision, Cheru Ouseph v. Kunhi Pathumma (1981 KLT.495) M. P. Menon J., however has taken the view that a Rent Control Court has the power in appropriate cases to restore an application dismissed for default. As we are, in this writ petition, directly concerned only with the powers of the Land Tribunal functioning under the Act (Kerala Land Reforms Act), it is not necessary to examine the apparently conflicting views expressed by the learned judges in the two decisions referred to above in proceedings arising out of the Rent Control Act. 8. In Joseph v. Thommen Joseph (1982 KLT. 271) I had occasion to consider the question whether the Land Tribunal constituted under S.99 of the Act has power to stay proceedings before it. Repelling the contention based on the reasoning that this is not one of the powers specifically conferred on the Land Tribunal, in paragraph. 6 at page 273 of the report, I stated as follows: "It would have made all the difference if in the Kerala Land Reforms Act there was any express provision by which the Land Tribunal was prohibited from staying the proceedings. 6 at page 273 of the report, I stated as follows: "It would have made all the difference if in the Kerala Land Reforms Act there was any express provision by which the Land Tribunal was prohibited from staying the proceedings. So long as there is no such statutory inhibition, it would be open to the Land Tribunal in exercise of its implied power to effectuate the provisions of the Act to pass such orders as it thinks fit and necessary to advance and further the cause of justice, and such a power should certainly include the power to stay the proceedings where the Tribunal is of the opinion that it would be advantageous to avoid conflict of decisions and multiplicity of proceedings to await the decision of the Civil Court on identical issues in a suit instituted prior to the institution of the proceedings before the Land Tribunal." 9. Chandrasekhara Menon J. in Dy. Conservator of Forests v. Sarojini (1981 KLT. 179) has observed: "Inherent jurisdiction is there even with Tribunals of limited jurisdiction." The question that arose was whether in an appeal under S.61D of the Kerala Forests Act, 1962, the District Court has power to pass interlocutory orders. Rejecting the contentions of the petitioner in that writ petition it was held: "The power to pass interlocutory orders is a necessary corollary to the power to entertain an appeal or revision, and in any view of the matter the District Judge has got inherent jurisdiction to grant stay." 10. In Annamma Philip v. Accidents Claims Tribunal (1980 KLT. 649), considering the provisions of S.110-C (2) of the Motor Vehicles Act, 1939, and R.6 and 21 of the Motor Accidents Claims Tribunals Rules, 1977, I have held as follows: "No doubt, the provisions which we have already noticed in the Act and the Rules are silent about the competence of the Claims Tribunal to implead parties; it has, however, to be noticed that there is no prohibition against the Tribunal exercising the power of impleading parties." 11. Sri Siby Mathew submitted that in view of the contrary view taken in some of the decisions referred to above, it might be necessary to reconsider the principle laid down in the above decision and also the decision in Joseph v. Thommen Joseph (1982 KLT 271). Sri Siby Mathew submitted that in view of the contrary view taken in some of the decisions referred to above, it might be necessary to reconsider the principle laid down in the above decision and also the decision in Joseph v. Thommen Joseph (1982 KLT 271). I do not, however, feel persuaded to refer this to a Division Bench in view of the decision of the Supreme Court in Dhani Devi v. S. B. Sharma (AIR. 1970 SC. 759) wherein Bachawat J., observed as follows: "In the event of the death of an applicant after the expiry of the time appointed for making the applications, the person succeeding to the possession of the vehicle, cannot having regard to the lapse of time, make another application in his own right. The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and we see no reason why he cannot be permitted to do so. Where the successor is allowed to prosecute the application, the Regional Transport Authority may have to take into consideration many matters personal to the successor, such as his experience, the facilities at his disposal for operating the services and his adverse record, if any: The matters personal to the deceased applicant can no longer be taken into account. The rival applicants should, if necessary be given suitable opportunity to file objections against the grant of the permit to the successor. S.57 does not deal with the situation arising on the death of an applicant nor has it prescribed any time for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him. In the absence of any statute or statutory rule, the Regional Transport Authority may devise any reasonable procedure for dealing with the Situation." (emphasis supplied). 12. A Full Bench of this Court which consisted of M. S. Menon C. J., T. K. Joseph and S. Velu Pillai, JJ., has observed in N. K. Dharmadas v. S.T.A. Tribunal (AIR. In the absence of any statute or statutory rule, the Regional Transport Authority may devise any reasonable procedure for dealing with the Situation." (emphasis supplied). 12. A Full Bench of this Court which consisted of M. S. Menon C. J., T. K. Joseph and S. Velu Pillai, JJ., has observed in N. K. Dharmadas v. S.T.A. Tribunal (AIR. (50) 1963 Kerala 73) as follows: "A remand by an appellate Court is usually made when the record before it is in such shape that the appellate Court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted, without which the jurisdiction cannot be exercised: cui jurisdictio data est, ea quo-que concessa essee videntur, sine quibus juris-dictio explicari non potest". In Bhargavi Amma v. Varkey (1967 KLT. 317 F.B.) this Court had held that an application filed under Act I of 1964 for the fixation of fair rent which was dismissed by the Land Tribunal for default could be restored by it. Sri Siby Mathew pointed out that in R.99 of the Kerala Land Reforms (Tenancy) Rules, 1964, it has been provided: "In all proceedings before the Land Tribunal and the Land Board, the procedure prescribed as regards application in the Code of Civil Procedure or the Rules made thereunder shall, as far as can be made applicable, be followed except to the extent otherwise provided in the Act or in these Rules." and that in the absence of similar provision in R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970 that reasoning would not hold good. I find that the decision of the Full Bench did not rest solely on the provisions contained in R.99 quoted above, though the Full Bench appears to have found support for the decision in that rule. 13. It was pointed out by Sri Siby Mathew that in Chandrasekharan v. Jennat (1981 KLT. I find that the decision of the Full Bench did not rest solely on the provisions contained in R.99 quoted above, though the Full Bench appears to have found support for the decision in that rule. 13. It was pointed out by Sri Siby Mathew that in Chandrasekharan v. Jennat (1981 KLT. 912) Balakrishna Menon J., has held that the power of review by a Tribunal constituted under a statute could be exercised only if such power is conferred by that statute on the Tribunal; as no such power having been conferred by the Land Reforms Act or the Rules framed thereunder, the Tribunal constituted under the Act has no power to review its order on the merits of the case. The position with respect to review, or for that matter setting aside ex parte orders, as already pointed out, stands different from the power to restore the application dismissed for default of appearance: and it cannot be treated as an authority for the proposition that the Land Tribunal has no power to restore the application dismissed for default. 14. In any view of the matter, in exercising the power for restoring the application dismissed for default of appearance, the Tribunal was only advancing the cause of justice: and there being no statutory inhibition to the Tribunal exercising such power, though there is no specific provision conferring power for the exercise of such power, I no not think that a case for interference under Art.226 of the Constitution has been made put. In Mariamma Mathai v. Pothen (1974 KLT. 32) this Court declined to interfere with the impugned order though not passed in accordance with the provisions of law, inasmuchas interests of justice did not demand such interference by Court. In the light of the foregoing discussion I find no scope for interference with Exts. P1 and P3 orders passed by the Land Tribunal and the Land Board respectively. The result, therefore, is that the writ petition fails, and is dismissed, however, in the circumstances of the case, without any order as to costs.