GEORGE MATHEW v. STATE OF KERALA — 1985 DIGILAW 266 (KER)

Judgment :- 1. The petitioners had purchased 12 acres, 20.30 acres and 6.14 acres respectively in Sy. No.173/1A1A in Padinjarethara amsoro, South Wynad Taluk of the erstwhile Kozhikode District for valuable consideration. The above lands were parts of lands covered by a kanom demise in favour of one Shri. Dominic Joseph as per registered deed No. 598/1943 dated 28-5-1943. At the time when the petitioners purchased these lands there were registered partitions. The original kanomdar, Shri. Dominic Joseph, had filed O. A. Nos. 738, 741 and 744 of 1973 before the Land Tribunal, Kalpetta for the purchase of the right, title and interests of the landlord, in respect of certain properties including the lands subsequently transferred to the petitioners. It was during the pendency of those proceedings that the legal representatives of Shri. Dominic Joseph assigned those properties to various persons including the petitioners. In the ceiling cases under S.85 of the Kerala Land Reforms Act taken against the petitioners, it was found that the lands had been converted into and registered as plantations. Suo motu proceedings for assignment of the right, title and interest in favour of the petitioners, who were in possession of the lands were initiated in S.M.C. Nos. 331, 332 and 333/81,177,178 and 181 of 1983 and 179/83. The jenmi of the properties was made a party to those proceedings and notices were also served on all parties entitled to such notice. Those proceedings were allowed and certificates for purchase were issued in favour of the petitioners on 21-3-1984. 2. The fourth respondent, who claims to be one of the legal representatives of the deceased jenmi, filed appeals before the Appellate Authority under the Kerala Land Reforms Act as A. A. Nos. 119 and 122 of 1984 (O.P. No. 3503 of 1984),120 of 1985 (OP. No. 3764 of 1985) and 85,86 and 87 of 1984 (O.P. No. 3359 of 1985). challenging the orders in the suo mote proceedings referred to above. Admittedly, the appeals were filed far out of time. Admittedly again, the appeals were accompanied by applications for condonation of delay. Notices were issued on such applications. The delay is yet to be condoned. But, the appellate authority passed orders of interim stay on applications filed by the fourth respondent against orders granting purchase certificates in favour of the petitioners. Petitioners challenge the orders of interim stay. 3. Admittedly again, the appeals were accompanied by applications for condonation of delay. Notices were issued on such applications. The delay is yet to be condoned. But, the appellate authority passed orders of interim stay on applications filed by the fourth respondent against orders granting purchase certificates in favour of the petitioners. Petitioners challenge the orders of interim stay. 3. Counsel for the petitioners submits that the second respondent-Appellate Authority (Land Reforms) had no jurisdiction to issue interim orders in the nature of Ext. P7 and P9 in OP No 3359 of 1983, Exts. P6 and P7 in OP. No. 3503 of 1985, and Exts. P9 in OP. No. 3764 of 1985. Counsel for the petitioner in OP. No. 3359 of 1985 also invited my attention to the fact that the legal representatives including the party respondents had filed appeals before the Appellate Authority on an earlier occasion stating that OA. Nos. 738, 741, 744 of 1973 etc., had been allowed by the Land Tribunal, Kalpetta without notice to them, and had obtained ex-parte orders from the Appellate Authority directing the Range Officer not to issue passes for transport of timber to the petitioners. Petitioners filed OP. No. 1958 of 1983 against such orders and in Ext. P11, obtained orders of stay of the directions of the appellate authority. Reference is also made to Ext P12 judgment of the Appellate Authority dismissing the appeals for the reason that the appellants submitted that no orders had been issued by the Land Tribunal in O. A. No. 738 of 1973 series. Counsel submits that the proceedings were initiated before the Appellate Authority with full knowledge and awareness that no orders had been passed by the Land Tribunal in the original applications filed earlier by Shri. Dominic Joseph in an attempt to protract the proceedings and to extract some concessions from the petitioners by use of pressure tactics. The interim orders obtained from the Appellate Authority in the present applications for stay even before the appeals were entertained by condonation of delay in filing the same are also said to be a part of the deliberate design to pressurise the petitioners to make some concessions in favour of the legal representatives of the deceased jenmi. The interim orders obtained from the Appellate Authority in the present applications for stay even before the appeals were entertained by condonation of delay in filing the same are also said to be a part of the deliberate design to pressurise the petitioners to make some concessions in favour of the legal representatives of the deceased jenmi. Counsel submitted that since 1943 when the jenmi executed the kanom document in favour of late Shri. Dominic Joseph, the jenmi had ceased to have any right in the property and none were asserted thereafter. Reference is also made to various tactics adopted by the legal representatives of the deceased jenmi to snatch away part of the compensation after they came to know that the lands concerned were likely to be acquired for the Kuttiady Augmentation Scheme. 4. The point of law which arises for consideration in these Original Petitions is as to whether the Appellate Authority could have issued orders of interim stay in the appeals which had yet to be entertained Under S.102 of the Kerala Land Reforms Act. It is not in dispute that the appeals can be entertained only after orders are passed on the applications for condonation of delay. It is not controverted that such orders are yet to be passed by the Appellate Authority. 5. Shri. T. R. Govinda Warrier, counsel appearing for the respondents submits that S.101 of the Kerala Land Reforms Act provides only for the application of the provisions of the Code of Civil Procedure, as it stood at the time when S.101 of the Act was enacted to proceedings before the Land Tribunal and other authorities. According to him, S.102(3) of the Act also enables application of the Code of Civil Procedure only as it stood at the time when S.102 of the Act was enacted. He urged that it was only by incorporation of R.3A in Order XLI of the Code of Civil Procedure that specific provision was made to the effect that no order of stay of proceedings shall be made unless the appeal is entertained after orders are passed on applications for condonation of delay with notice to the respondents. Counsel submitted that in the absence of such a specific provision, it was competent for an appellate authority to pass interim orders in the exigencies of the situation even before entertaining the appeal. Counsel submitted that in the absence of such a specific provision, it was competent for an appellate authority to pass interim orders in the exigencies of the situation even before entertaining the appeal. Counsel sought to relate this to the inherent power of the appellate authority to do justice between parties. 6. Counsel for the petitioners seems to be right in their submission that an appellate authority can have jurisdiction to pass any interim order only in an appeal which is competently filed before it. In a case where there is delay in filing the appeal, S.102(2) of the Act enables the Appellate Authority to condone the delay on being satisfied about the sufficiency of the grounds. It cannot be as if the Appellate Authority gets jurisdiction - inherent or incidental - to pass any order in relation to the cause even before the appeal is competently before it. The appeal can be taken on file only when the delay, if any, is condoned. The power to grant interim orders can be exercised only in aid of appeals which are properly entertained and are on the files of the appellate authority. Even the inherent or incidental power of an appellate authority can claim existence and legitimacy only in aid of and not in anticipation of an appeal. In a case requiring an order condoning the delay in its filing, it cannot be said that the appeal has been filed or has been entertained. In such cases, an appeal is still born-in terms of R.3A(3) of Order XLI of the Code of Civil Procedure, it is only "an appeal proposed to be filed". If that be so. even in the absence of a rule like R.3A of Order XLI of the Code of Civil Procedure, it cannot be said that the appellate authority has jurisdiction to pass an ex-parte order or interim stay in anticipation of condonation of delay in filing the appeal. The submission of counsel for the respondents that every appellate authority has got, by implication, the necessary, incidental and ancillary power as an adjunct of appellate jurisdiction, the power to issue interim orders cannot avail the respondents, since, an appeal in aid of which alone an interim order could be passed is yet to be. The submission of counsel for the respondents that every appellate authority has got, by implication, the necessary, incidental and ancillary power as an adjunct of appellate jurisdiction, the power to issue interim orders cannot avail the respondents, since, an appeal in aid of which alone an interim order could be passed is yet to be. I find it extremely difficult to accept, on principle, the submission that an appellate authority has got the incidental and ancillary power to pass an interim order even in a case where the appeal is yet to be entertained or betaken on file. Until and unless the application for condonation of delay is allowed, it is as if there are no appellate proceedings before the appellate authority. An incidental power cannot therefore be invoked. I have not been referred to any precedent taking a contrary view that an appellate authority has power to issue interim orders in aid of an appeal yet to be instituted and entertained. 7. I am convinced that the submission of the counsel for the respondents that R.3A of Order XLI of the Code of Civil Procedure has to be ignored since that rule was not available in the Code when S.101 and 102 of the Kerala Land Reforms Act were enacted needs only to be stated to be rejected. It is elementary that unless a different intention is manifest, a reference to any enactment comprehends a reference thereto as amended from time to time. R.3A of Order XLI of the Code of Civil Procedure is also within the comprehension of S.101 and 102 of the Kerala Land Reforms Act, subsequent to the incorporation of that rule. If that be the position, the appellate authority could not have arrogated jurisdiction to pass interim orders without entertaining the appeals after condonation of delay. The conclusion is irresistible that the appellate authority bad no power to issue interim orders 8. I am aware that ordinarily, the jurisdiction of this court under Art.226 of the Constitution of India shall not be exercised against interim orders, and the parties should be left to seek their remedies before the authority which passed such orders. The conclusion is irresistible that the appellate authority bad no power to issue interim orders 8. I am aware that ordinarily, the jurisdiction of this court under Art.226 of the Constitution of India shall not be exercised against interim orders, and the parties should be left to seek their remedies before the authority which passed such orders. But in the rarest of rare cases, when the interim order is obtained in manifest abuse of processes of law and when the very peculiar facts as in the present case cry for justice, refusal to interfere will amount to acquiescence in gross injustice. I am convinced that this is one such case where this court shall interfere to express its disavowal of the abuse and the consequent injustice. The Original Petitions have, therefore, to be allowed; and I do so. Exts. P7 to P9 in O. P No. 3359 of 1985. Exts. P6 and P7 in O. P. No. 3503 of 1985, and Ext. P3 in O.P. No. 3764 of 1985 are hereby quashed. Petitioners will be entitled to their costs from the respondents, including Advocates' fee of Rs. 250/- in each of the Original Petitions.