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1992 DIGILAW 285 (KER)

Vasudevan Nair v. Achuthan Nair

1992-08-06

K.S.PARIPOORNAN

body1992
ORDER K.S. Paripoornan, J. 1. The applicant in E. P. No. 55 of 1987 In O. A. No. 928 of 1970, Land Tribunal, Alappuzha (appellant in A. A. No. 15 of 1988, Appellate Authority (L. R), Alappuzha) is the revision petitioner. This revision is filed under S.103 of the Kerala Land Reforms Act. The revision petitioner assails the order passed by the Appellate Authority dated 6-11-1991 confirming the order passed by the Land Tribunal, Alappuzha dated 27-1-1988. The prayer of the revision petitioner to extend the time for deposit of the purchase price was rejected. 2. The short facts necessary for adjudicating the controversy are as follows: The revision petitioner was the applicant in O. A. No. 928 of 1970, Land Tribunal, Kollam. He filed an application under S.13-A of the Kerala Land Reforms Act stating that he was holding the scheduled property, viz. 68 1/2 cents, on Ottikuzhikanam, and that the respondent filed O. S. No. 267 of 1964 before the Munsiff Court, Mavelikkara and obtained a decree for redemption and dispossessed the applicant on 16-12-1968 and 29-3-1969. The revision petitioner - applicant was a tenant at the time of dispossession and prayed that he may be allowed restoration of the scheduled property and he is prepared to deposit the amount received by him from the civil court. The Land Tribunal, by order dated 27-7-1973, held that the revision petitioner is entitled to restoration of the scheduled property, viz, 68 1/2 cents, on deposit of Rs. 21,303.33 and that the applicant wilt deposit the amount within one month, with notice to the other side and file execution petition for effecting delivery. Both the applicant and the respondent filed appeals, L. R. A. S. Nos. 71 and 83 of 1977, before the Appellate Authority (L. R), Ernakulam. The appeals were dismissed by a common order on 21-12-1979. Against the decision of the Appellate Authority in L. R. A. S. No. 83 of 1977, the respondent filed C. R P. No. 1677 of 1980 before this Court. By judgment dated 19 6-1986, the revision petition was dismissed. Nearly a year thereafter, the revision petitioner (applicant before the Land Tribunal) filed execution petition on 24-6-1987. He filed I. A. No. 15A/87 on 3-7-1987 praying that he may be allowed to deposit the value of improvements after condoning the delay in remitting the same. By judgment dated 19 6-1986, the revision petition was dismissed. Nearly a year thereafter, the revision petitioner (applicant before the Land Tribunal) filed execution petition on 24-6-1987. He filed I. A. No. 15A/87 on 3-7-1987 praying that he may be allowed to deposit the value of improvements after condoning the delay in remitting the same. The respondent in O. A. No. 928 of 1970 filed objections to the execution petition and also the petition for condonation of delay. The Land Tribunal, in a carefully Considered order dated 27-1-1988, adverted to R.130 of the Kerala Land Reforms (Tenancy) Rules, 1970, which clothes the Tribunal with jurisdiction to extend the time fixed by it for doing any act prescribed or allowed by the rules or to extend the period fixed by it and observed that there is Inordinate delay In making the deposit and the petition for condonation of delay deserves to be dismissed. The petition to condone the delay was dismissed. In consequence, the execution petition was also dismissed. The said order was affirmed in appeal by the Appellate Authority in A. A. No. 15 of 1988, by judgment dated 6-11-1991. It is the aforesaid orders that are challenged in the revision petition. 3. I heard counsel for the petitioner, Mr. P. G. Parameswara Panicker and Mr. P. Gopal and also counsel for the respondent, Mr. T. R. Raman Pillai. 4. It is agreed before me that R.130 of the Tenancy Rules clothes the Land Tribunal with jurisdiction or power to extend the time fixed in its order passed under S.13-A of the Land Reforms Act. It is common ground that the Land Tribunal has jurisdiction to extend the time fixed in its order dated 27-7-1973. But the question that was mooted before me was that the power vested in the Land Tribunal is a discretionary one and the discretion should be exercised in a judicial and fair manner. The power should be exercised reasonably and fairly. The Land Tribunal can extend the period fixed in its original order only after taking into account all facts and circumstances in the case and extension of time can be granted only for stated reasons. Counsel for the revision petitioner contended that the power has not been exercised judicially or according to law by the Land Tribunal in this case. 5. Counsel for the revision petitioner contended that the power has not been exercised judicially or according to law by the Land Tribunal in this case. 5. In this case, the Land Tribunal has held that the deposit has not been made within a reasonable time and there is Inordinate delay in the matter. Counsel for the respondent submitted that the reasons stated by the Land Tribunal for refusing to extend the time or period fixed originally in exercise of the powers vested in it under R.130 of the Tenancy Rules are just and proper and interference by this Court, in exercise of the revisional jurisdiction under S.103 of the Act, is not warranted or justified on the facts of this case. 6. The relevant statutory provisions to resolve the controversy in this case are S.13-A of the Act and R.130 of the Tenancy Rules. S.13-A (1) to (4) is as follows: "13A. Restoration of possession of persons dispossessed on or after 1st April, 1964- (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land: Provided that nothing in this sub-section shall- (a) apply in any case where the said land has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette; or (b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act. (2) Any person entitled to restoration of possession under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, apply to the Land Tribunal for the restoration of possession of the land. (2) Any person entitled to restoration of possession under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, apply to the Land Tribunal for the restoration of possession of the land. (3) The Land Tribunal may, after such inquiry at it deems fit, pass an order allowing the application for restoration and directing the applicant to deposit the compensation, if any, received by the applicant under any decree or order of court towards value of improvements or otherwise and the value of Improvements, if any, effected on the land after the dispossession as may be determined by the Land Tribunal, within such period as may be specified in the order. (4) On the deposit of the compensation and value of improvements as required in the order under sub-section (3), the Land Tribunal shall restore the applicant to possession of the land if need be by removing any person who refuses to vacate the same". Rule 130 reads as follows: "Extension of time-Where any period is fixed or granted by the Land Tribunal or the Appellate Authority (or the Taluk Land Board) or the Land Board or any other authority or officer for the doing of any act prescribed or allowed by these rules, it or he may, in its or his discretion, from time to time, extend such period even though the period originally fixed or granted may have expired". It should be stated that the power vested in the Land Tribunal is a discretionary one. It is an enabling or permissive one. The law on the point is lucidly stated thus : "But when a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it, or the manner in which it may only be exercised. In other words, the legal and factual context in which the power is to be exercised may combine the power with an obligation to exercise it even though it is conferred by use of the word 'May.....................Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right public or private of a citizen". (See G. P Singh's Principles of Statutory Interpretation - Fourth Edition, p. 244-245). (See G. P Singh's Principles of Statutory Interpretation - Fourth Edition, p. 244-245). The power is vested in a quasi judicial tribunal. It should act honestly, fairly, reasonably and in a judicial manner. The words "where any period is fixed or granted by the Land Tribunal for the doing of any act, it or he may, in its or his discretion, from time to time, extend such period even though the period originally fixed or granted may have expired" are of very wide import. Even without the specification of the words "in its or his discretion.", the enabling power vested in the Tribunal should be exercised only fairly and reasonably. The super added words "in its or his discretion" highlight the fact that the Tribunal should demonstrate by cogent and proper reasons the basis for arriving at the conclusion. 7. Rule 130 of the Tenancy Rules came up for consideration before a Bench of this Court in Varkey v. Hariharan Nair ( 1991 (2) KLT 403 ). At page 421, para 50 of the judgment, the Bench has observed that the rule should be interpreted liberally. Similar provision occurred in S.45 of the Income Tax Act, 1922 and in S.220 (6) of the Income Tax Act, 1962. The relevant statutory provision have come up for consideration before courts. Judicial decisions are uniform in holding that, in exercising the discretion, the authority is exercising a quasi judicial function. The power should be exercised fairly and reasonably and not arbitrarily or capriciously. The Tribunal or officer concerned should exercise the discretion in accordance with law. That means, the Tribunal should take into consideration relevant factors and eschew irrelevant factors; should pose the correct question and eschew the wrong question, from consideration. It should act reasonably and fairly and should not be influenced by extraneous considerations. 8. How the discretionary power should be exercised when words of similar import occur in a statute is seen discussed in a Bench decision of the Andhra Pradesh High Court reported in Vatcha Sreeramamurthy v. Income Tax Officer and another (XXX ITR 252). Subba Rao, C. J. stated thus, at page 257. " The discretionary statutory power conferred upon an authority for the public good is coupled with a duty to perform it under relevant circumstances. Subba Rao, C. J. stated thus, at page 257. " The discretionary statutory power conferred upon an authority for the public good is coupled with a duty to perform it under relevant circumstances. The fact that the exercise of the power is left to the discretion of the authorised person does not exonerate him from discharging his duty. If the discretionary power so conferred is exercised arbitrarily, capriciously or unreasonably or by taking into consideration extraneous and irrelevant considerations, in the eye of law, the authority concerned must be deemed not to have exercised the discretion at all, that is, he has not discharged his duty. If the Court on the facts placed before it comes to a definite conclusion that a particular authority has not exercised his duty for one or other of the aforesaid reasons, it will compel the authority to discharge his duty, or, to put it differently, to exercise his discretion honestly and objectively. There is also an essential distinction between a refusal to exercise the discretion and the manner of its exercise. If the authority fails to discharge his duty by refusing to exercise his discretion when facts calling for its exercise exist, or if he exercises discretion under the circumstances mentioned above, which is not an exercise of discretion in law, the Court will compel him to do so. If the authority concerned exercises his discretion honestly and in the spirit of the statute, no mandamus will be issued directing him to exercise his discretion in a particular way." There is an agreeing judgment by Viswanatha Sastri, J., wherein, His Lordship has adverted to various circumstances and events, in which, it could be said that there has been no exercise of discretion in the eye of law (pages 269 to 271 of the report). Relevant decisions on the above aspect have been adverted to in a judgment of this Court in V. N. Purushothaman v. A.I.T.O. ( 1983 KLT 607 ). Viswanatha Iyer, J. has also considered the matter in Rajan Nair v. Income Tax Officer ( 1987 (1) KLT 475 ). The discussions in the above two decisions are relevant in the context. 9. Thus, it is clear that R.130 of the Tenancy Rules clothes the Land Tribunal with a discretionary judicial power to extend the time originally granted. The time can be extended from time to time. The discussions in the above two decisions are relevant in the context. 9. Thus, it is clear that R.130 of the Tenancy Rules clothes the Land Tribunal with a discretionary judicial power to extend the time originally granted. The time can be extended from time to time. This can be done even though the period originally fixed or granted may have expired. 10. Applying the above principles to the case on hand, the only reason stated in the petition for the delay in making the deposit is the pendency of the proceedings, which finally ended in C.R.P. No. 1677 of 1980 - B. C. R, P. No: 1677 of 1980 was disposed of on 19-6-1986. The Original order of restoration was passed by the Tribunal on 27-7-1973. The Tribunal granted one month's time to deposit the compensation. It expired on 26-8-1973. One month's time so granted can, in the circumstances, be extended by one month from the final in the proceedings. The revision, C. R. P. No. 1677 of 1980, was disposed of, as stated earlier, on 19-6-1986. The certified copy filed by the applicant before the Tribunal shows that the copy was obtained on 9-7-1986. Even so, the execution petition was filed only on 24-6-1987, nearly an year after obtaining the judgment. It was still later the petition was filed invoking the discretionary jurisdiction of the tribunal under R.130 of the Tenancy Rules. In the petition filed on 3-7-1987, detailing the reasons for the delay to deposit the amount, the only reason stated is pendency of the proceedings before the Appellate Authority and before this Court. Normally, the period of one month granted by the Tribunal originally may be extended by the said period given to the applicant from the date of the final order passed in the same proceedings C. R. P No. 1677 of 1980. By a liberal Interpretation, even if it is reckoned as one month from the date when the applicant (revision petitioner) knew or received the certified copy of the order of this Court, it was on 9-7-1986 he obtained the order. The revision petitioner could have made the deposit, at least on or before 9-8-1986. He did not do so. He filed execution petition only on 24-6-1987, nearly 11 months after obtaining the copy of the order in the revision petition. The revision petitioner could have made the deposit, at least on or before 9-8-1986. He did not do so. He filed execution petition only on 24-6-1987, nearly 11 months after obtaining the copy of the order in the revision petition. No reason Is stated as to why the applicant revision petitioner did not file the execution petition and make the deposit at least within one month from the date of obtaining the certified copy of the order. The period of one month granted by the Tribunal is, by the rule of construction can be extended by one month from the date of the final order in the proceedings in the normal circumstances. He has not stated any circumstance which disabled him from making the deposit within that period or even within one month from the date of knowledge. In other words, it appears that the applicant revision petitioner acted rather casually and in an indifferent manner, unmindful of the consequence of not moving the Tribunal or making the deposit as ordered by the Tribunal, which alone will entitle him to work out the right given to him by the earlier order dated 27-7-1973. 11. After adverting to the above facts, the Tribunal held that nothing has been uttered about the delay and there is no reason to condone the inordinate delay in making the deposit. The reasons given by the Tribunal, declining to extend the time in exercise of its discretionary jurisdiction vested in it under R.130, of the Tenancy Rules, appears to be fair, proper and reasonable. This is not a case where, by any stretch of imagination, it is possible to hold that the Tribunal exercised the discretion vested in it either arbitrarily or capriciously or failed the exercise the discretion vested in it according to law. 12. The order passed by the Tribunal dated 27-1-1988 is justified in law. The order confirming the same by the Appellate Authority dated 6-11-1991 is also not open to any attack. I held that the orders passed by the authorities below are legal and valid. It cannot be said that the orders passed by the authorities below are erroneous in law or that the authorities below failed to decide any question of law. The revision is without merit. It is dismissed.