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Kerala High Court · body

1988 DIGILAW 550 (KER)

NABEESSUMMA v. AMINA

1988-11-15

M.M.PAREED PILLAY

body1988
ORDER : O. A. 54 of 1974 under S.72MM of the Kerala Land Reforms Act was allowed by the Land Tribunal. Respondents 1 to 5 filed I. A. 6 of 1980 to set aside the order of the Land Tribunal on the ground that their right in the property is adversely affected by the order. The Interlocutory Application was allowed by the Land Tribunal. Revision petitioner filed appeal before the Appellate Authority (Land Reforms), Cannanore. The Appellate Authority dismissed the appeal holding that the order passed by the Land Tribunal is under S.72MM (7) and not under S.72F of the Act and hence the appeal is not maintainable. 2. Whether the Appellate Authority was justified in holding so is the question to be considered in the Civil Revision Petition. Admittedly, O. A. 54 of 1974 was filed under S.72MM of the Act. Under S.72MM, it is open to the cultivating tenant and the land owner to file a joint application before the Land Tribunal for an order assigning the right, title and interest of the land owner to the cultivating tenant. When such on application is allowed, any person affected by the order can challenge it within 90 days from the date of order on the ground that he had no notice of the application. When such an application is filed under S.72MM(7), the Land Tribunal may either set aside the order and proceed under S.72F or reject the application. Two courses open to the Land Tribunal under S.72MM (7) are: (1) to set aside the order and proceed under S.72F or (2) reject the application. Under S.72MM (8) an appeal shall lie from any order passed by the Land Tribunal under sub-s. (7) as if such order were an order under S 72F. Counsel for the respondents argued that when the Land Tribunal has set aside the order, it has to proceed under S.72F and hence merely on setting aside the order a party cannot file appeal. It is contended that as S.72MM (7) provides that the Land Tribunal after setting aside the order has to proceed under S.72F, appeal could be filed only after order under S.72F has been passed. Counsel submitted that the wording in S.72MM (7) that the “Land Tribunal may either set aside the order and proceed under S.72F” makes it abundantly clear that the word ‘and’ should be read conjunctively and not disjunctively. Counsel submitted that the wording in S.72MM (7) that the “Land Tribunal may either set aside the order and proceed under S.72F” makes it abundantly clear that the word ‘and’ should be read conjunctively and not disjunctively. No such interpretation can be given as against the plain meaning of S.72MM (8) as indubitably an appeal lies from any order passed by the Land Tribunal under sub-s. (7) as if such order were an order under S.72F. When S.72MM(8) says that any order made under sub-s. (7) is appealable, it cannot be confined to rejection of the application only. A reading of S.72MM (8) cannot lead to the conclusion that in a case where the Land Tribunal had allowed an application under sub-s. (7), the aggrieved party cannot file appeal and he will have to wait till the order under S.72F is eventually passed by the Land Tribunal. If that was the intention of the legislature, that could have been made very clear in sub-s. (8). But we find that the legislature in its wisdom wanted to give the right of appeal to both sides. It is difficult to conceive a position that in a case where the application under S.72MM (7) was allowed, the person who is affected thereby will have to wait till order under S.72F has been passed. Act does not contemplate such a situation. Therefore it is not possible to hold that under S.72MM (8) no appeal lies against an order allowing application under S.72MM(7). S.72MM (8) is categoric that appeal would lie from any order passed by the Land Tribunal under sub-s. (7) as if such order were an order under S.72F. It cannot be said that appeal remedy is not available to a party who is aggrieved by the allowing of the application under S.72MM(7) and he has to wait till order under 72F is passed by the Land Tribunal to file appeal. 3. The Appellate Authority was not justified in holding that order under S.72MM (7) is not appealable. The judgment of the Appellate Authority is set aside and the case is remanded to the Appellate Authority for consideration afresh after hearing both sides and in accordance with law. The C.R. P. stands allowed. No order as to costs. Allowed.