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2017 DIGILAW 868 (KER)

PUTHANPURAYIL SATHI v. PARAMBAN DEVI

2017-06-12

ANIL K.NARENDRAN

body2017
JUDGMENT : ANIL K. NARENDRAN, J. 1. The petitioners herein filed I.A.No.134/2010 in A.A.No.83/2007 on the file of the Appellate Authority (LR), Kannur, raising the question of maintainability of A.A. No.83/2007, an appeal filed by the respondents herein under Section 102 of the Kerala Land Reforms Act, 1963 (for brevity, 'the Act'), challenging Ext.P2 order No.162/2007/E dated 16.7.2007 of the Land Tribunal, Koothuparamba, by which the survey number and extent of land in Ext.P1 purchase certificate dated 28.2.1977 issued pursuant to suo-motu proceedings in S.M.P.No.1828 of 1976 in C.P.No.6266 of 1977 stands corrected by inclusion of the survey number omitted to be included while issuing the said certificate, i.e., 'R.S.No.89/2B1' and the extent of land in hectors as 1.0929 hectors', which was wrongly shown as 0.0929 hectors', though the extent of land in acres was correctly shown as 2 acres and 70 cents' in the said certificate, by invoking its powers under Rule 136A of the Kerala Land Reforms (Tenancy) Rules, 1970 (for brevity, 'the Tenancy Rules') after conducting a field enquiry and obtaining a report of the Taluk Surveyor, through the Tahsildar, Thalassery. 2. In A.A. No.83/2007, the appeal filed before the Appellate Authority, the respondents herein contended, inter alia, that Ext.P2 order of the Land Tribunal correcting the survey number as R.S. No.89/2B1 is improper and vitiated by procedural irregularity, in the absence of a detailed enquiry and proper appreciation of evidence. According to the respondents herein, the petitioners herein have no title over any piece of land in R.S. No.89/2B1. On the other hand, since 1950 the respondents herein as well as their predecessors-in-interest are in actual possession of the property in R.S. No.89/2B1 and they have made valuable improvements in the said land. Though the purchase certificate in question was issued in the year 1977, the petition for correction was made only in the year 2006, after a lapse of nearly 30 years. Therefore, the respondents herein contended that Ext.P2 order of the Land Tribunal is liable to be set aside. 3. Before the Appellate Authority, the petitioners herein filed I.A. No.134/2010 with a request to consider the maintainability of A.A. No.83/2007 as a preliminary issue, contending that the appeal filed against Ext.P2 order passed by the Land Tribunal under Rule 136A of the Tenancy Rules is not legally maintainable under Section 102 of the Act. 4. 3. Before the Appellate Authority, the petitioners herein filed I.A. No.134/2010 with a request to consider the maintainability of A.A. No.83/2007 as a preliminary issue, contending that the appeal filed against Ext.P2 order passed by the Land Tribunal under Rule 136A of the Tenancy Rules is not legally maintainable under Section 102 of the Act. 4. Both sides filed argument notes, i.e., Exts.P5 and P6 respectively, and after considering the rival contentions, the Appellate Authority by Ext.P7 order dated 12.6.2013 dismissed I.A. No.134/2010, holding that Ext.P2 order of the Land Tribunal, which is a final order, can be challenged in an appeal filed under Section 102 of the Act. 5. Feeling aggrieved by Ext.P7 order, the petitioners herein are before this Court in this original petition filed under Article 227 of the Constitution of India. 6. I have heard the arguments of learned Senior Counsel for the petitioners/petitioners in I.A. No.134/2010 and also the learned counsel for the respondents/respondents in that I.A. 7. The learned Senior Counsel for the petitioners would contend that Ext.P2 order of the Land Tribunal by which the mistakes in Ext.P1 purchase certificate issued pursuant to suo-motu proceedings in S.M.P. No.1828 of 1976 in C.P. No.6266 of 1977 stands corrected, by invoking its powers under Rule 136A of the Tenancy Rules, is not an appealable order under Section 102 of the Act. 8. Per contra, the learned counsel for the respondents would contend that, Ext.P2 order of the Land Tribunal invoking its powers under Rule 136A of the Tenancy Rules can be treated as an order of the said Tribunal under Section 57 of the Act, which is an appealable order under Section 102 of the Act. 9. Section 102 of the Kerala Land Reforms Act, which provides for appeal to the Appellate Authority, reads thus; "102. 9. Section 102 of the Kerala Land Reforms Act, which provides for appeal to the Appellate Authority, reads thus; "102. Appeal to appellate authority.- (1) The Government or any person aggrieved by any order of the Land Tribunal under subsection (2) of Section 12, sub-section (3) of Section 13A, Section 22, Section 23, sub-section (2) of Section 26 (where the amount of arrears of rent claimed exceeds five hundred rupees), Section 31, Section 47, sub-section (3) or sub-section (4) of Section 48, sub-section (3) of Section 49, sub-section (6) of Section 52, Section 57, sub-section (5) of Section 66, Section 72F, Section 73, sub-section (2) of Section 77, Section 80B, sub-section (4) of Section 90, Section 106 or Section 106A may appeal against such order within such time as may be prescribed to the appellate authority. (2) The appellate authority may admit an appeal presented after the expiration of the period prescribed under sub-section (1) if it is satisfied that the appellant had sufficient cause for not presenting it within that period. (3) In deciding appeals under sub-section (1), the appellate authority shall exercise all the powers which a Court has and follow the same procedure which a court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908. (4) Where there has been any modification in appeal from any decision or order of the Land Tribunal, such decision or order shall be modified accordingly." 10. In T.P. George v. Aliyamma Mathew and another (1989 (1) KLN 199) this Court held that, under Section 102 of the Kerala Land Reforms Act, an appeal can be filed against any order of the Land Tribunal passed under the various sections and sub-sections mentioned therein. The said legal position has been reiterated in Chacko Abraham v. Appellate Authority (1993 (1) KLT 635) wherein this Court held that, Section 102 of the Kerala Land Reforms Act provides for appeal to the Appellate Authority from the order of the Land Tribunal. It enumerates orders under different sections against which the Government or the aggrieved party could prefer appeal from the order of the Land Tribunal. Para.4 of the said decision reads thus; "4. The question that arises for consideration is whether an order passed by the Land Tribunal under Section 77(3) is appealable under Section 102 of the Act or not. It enumerates orders under different sections against which the Government or the aggrieved party could prefer appeal from the order of the Land Tribunal. Para.4 of the said decision reads thus; "4. The question that arises for consideration is whether an order passed by the Land Tribunal under Section 77(3) is appealable under Section 102 of the Act or not. Section 102 provides for appeal to the appellate authority from the order of the Land Tribunal. It enumerates orders under different sections against which the Government or the aggrieved party could prefer appeal from the order of the Land Tribunal. Section 102 (1) provides that an order of the Land Tribunal under subsection (2) of Section 77 is appealable. But an order under Section 77(3) is not appealable. Section 77(3) contemplates that if the kudikidappukaran does not shift the kudikidappu before the date specified in the order under sub-section (2) of Section 77 the Land Tribunal shall cause the kudikidappukaran to be evicted from the kudikidappu. It is on such an application by the petitioner that Ext.P2 order was passed by the Land Tribunal. As the order Ext.P2 is passed under Section 77(3) of the Act contention of the petitioner that it is not appealable under Section 102 has to be upheld." 11. In the instant case, Ext.P2 order of the Land Tribunal is one invoking its powers under Rule 136A of the Tenancy Rules. According to the petitioners herein, by Ext.P2 order of the Land Tribunal, Ext.P1 purchase certificate issued pursuant to suo-motu proceedings in S.M.P. No.1828 of 1976 in C.P. No.6266 of 1977 stands corrected by inclusion of the survey number i.e., 'R.S. No.89/2B1' omitted to be included while issuing the said certificate and the extent of land in hectors as 1.0929 hectors', which was wrongly shown as 0.0929 hectors', though the extent of land in acres was correctly shown as 2 acres and 70 cents' in the said certificate . 12. Rule 136A of the Kerala Land Reforms (Tenancy) Rules reads thus; "136A. 12. Rule 136A of the Kerala Land Reforms (Tenancy) Rules reads thus; "136A. Correction of mistakes in orders of Land Tribunal or the Taluk Land Board and Land Board.- Clerical or arithmetical mistakes in orders of the Land Tribunal or the Taluk Land Board or the Land Board or errors arising therein from any accidental slip or omission may at any time be corrected by the Land Tribunal or the Taluk Land Board or the Land Board as the case may be either of its own motion or on the application of any of the parties." 13. In Mathilakath Skaria and another v. Mathilakath Joseph and another ( 2013 (1) KHC 293 ) this Court held that, the power under Rule 136A of the Tenancy Rules stands on a very narrow premise and confines the power to correction of arithmetical or clerical mistakes; which is akin to section 152 of the Code of Civil Procedure, 1908. 14. This Court need not consider the question as to the legality or otherwise of Ext.P2 order of the Land Tribunal in this original petition, since by Ext.P7 order of the Appellate Authority, which is impugned in this original petition, the said authority has decided only the preliminary issue raised as to the maintainability of the appeal, i.e., A.A. No.83/2007 filed against the said order of the Land Tribunal. 15. On the question of maintainability of the appeal filed against Ext.P2 order of the Land Tribunal, the Appellate Authority held in Ext.P7 order that a final order of the Land Tribunal can be challenged in an appeal filed under Section 102 of the Act and as such, the appeal filed by the respondents herein is legally maintainable. The said reasoning of the Appellate Authority is per se arbitrary and patently illegal, inasmuch as, Section 102 of the Act provides for an appeal to the Appellate Authority only from an order of the Land Tribunal passed under any of the sections/sub-sections enumerated in sub-section (1) of Section 102. 16. The learned counsel for the respondents herein would contend that, Ext.P2 order of the Land Tribunal invoking its powers under Rule 136A of the Tenancy Rules can be treated as an order of the said Tribunal under Section 57 of the Act, which is an appealable order under Section 102 of the Act. 17. 16. The learned counsel for the respondents herein would contend that, Ext.P2 order of the Land Tribunal invoking its powers under Rule 136A of the Tenancy Rules can be treated as an order of the said Tribunal under Section 57 of the Act, which is an appealable order under Section 102 of the Act. 17. Section 57 of the Kerala Land Reforms Act deals with the procedure for consideration of an application filed before the Land Tribunal under Section 54 of the said Act for purchase of landlord's right by cultivating tenants. Section 57 of the Act reads thus; "57: Procedure before the land Tribunal.-(1) As soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. (2) The land Tribunal shall, after considering the claims and objections received and hearing any person appearing in pursuance of the notice issued under sub-section (1) and after making due enquiries, pass orders- (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. (3) where the cultivating tenant is entitled to purchase only a portion of the land left after resumption, the Land Tribunal shall, as far as possible, allow the purchase of the portion indicated in the application under sub-section (3) of Section 54. (3A) Where the right, title and interest of the landowner or the intermediary vested in the cultivating tenant form part of the security for any encumbrance or charge for maintenance or alimony, the Land Tribunal shall, for the purpose of discharging the same, apportion the entire encumbrance or the charge for the maintenance or alimony between the portion of the land, the right, title and interest over which vested in the tenant and the portion remaining after such vesting, in proportion to the values of the two portions of the property; and discharge only the liability pertaining to the portion to which the purchase relates. (4) An order under clause (ii) of sub-section (2) allowing the application shall specify- (i) the purchase price payable by the cultivating tenant; (ii) the amount due to the landowner and each of the intermediaries, if any, on the apportionment of the purchase price paid by the cultivating tenant; (iii) the value of encumbrances subsisting or claims for maintenance or alimony charged on the right, title and interest of the landowner and the intermediaries, if any; (iv) the amounts payable to the holder of the encumbrance or the person entitled to the maintenance or alimony and the order of priority in which such amount is payable; and (v) the amount payable to the landowner and each of the intermediaries after deducting the value of the encumbrances or the claims for maintenance or alimony. (5) If the landowner or intermediary is liable to pay any amount to the cultivating tenant under this Act, the Land Tribunal shall, in passing orders on the application for purchase, set off such amount against the purchase price payable to the landowner or the intermediary. (6) The Land Tribunal shall, as soon as may be, forward a copy of the orders under sub-section (2) to the Land Board." 18. From a plain reading of Section 57 of the Act, it is evident that an order of the Land Tribunal under Section 57, which is made appealable under sub-section (1) of Section 102 of the Act to the Appellate Authority, should be one passed by the Tribunal under clause (i) of sub-section (2) of Section 57, on an application from the landowner or intermediary for an order of resumption, in accordance with the provisions of Section 22; or one passed under clause (ii) of sub-section (2) of Section 57, on an application for purchase of landlord's rights by cultivating tenants, made under Section 54 of the Act. Therefore, Ext.P2 order of the Tribunal by which Ext.P1 purchase certificate stands corrected by inclusion of the survey number omitted to be included while issuing the said certificate and the extent of land in hectors which was wrongly shown, is not an appealable order under sub-section (1) of Section 102 of the Act. 19. The learned counsel for the respondents herein would then contend that, in view of sub-section (4) of Section 102 of the Act an appeal will lie from any decision or order of the Tribunal. 20. 19. The learned counsel for the respondents herein would then contend that, in view of sub-section (4) of Section 102 of the Act an appeal will lie from any decision or order of the Tribunal. 20. Sub-section (4) of Section 102 of the Act provides that, where there has been any modification in appeal from any decision or order of the Land Tribunal, such decision or order shall be modified accordingly. From a plain reading of the said provision, it is evident that sub-section (4) of Section 102 of the Act does not confer any right of appeal and the said provision only stipulates that, where there has been any modification in appeal filed under sub-section (1) of Section 102 of the Act from any decision or order of the Land Tribunal which is made appealable under the said sub-section, such decision or order of the Land Tribunal shall be modified accordingly. Therefore, sub-section (4) of Section 102 of the Act does not confer any right on the Government or any person aggrieved by an order of the Land Tribunal passed under the sections/sub-sections other than those enumerated in sub-section (1) of Section 102 of the Act to file an appeal before the Appellate Authority against such an order. The contention to the contra advanced by the learned counsel for the respondents herein can only be repelled as legally unsustainable. 21. For the reasons stated above, I find absolutely no reason to sustain Ext.P7 order dated 12.6.2013 of the Appellate Authority (LR), Kannur in I.A.No.134/2010 in A.A.No.83/2007. 22. In the result, this original petition is allowed, setting aside Ext.P7 order of the Appellate Authority (LR), Kannur. Accordingly, A.A.No.83/2007 filed by the respondents herein challenging Ext.P2 order dated 16.7.2007 of the Land Tribunal, Koothuparamba will stand dismissed as not maintainable under sub-section (1) of Section 102 of the Act. 23. It is made clear that this Court has not expressed anything on the merits of Ext. P2 order passed by the Land Tribunal. The contention raised by both the sides are left open to be raised in an appropriate proceedings challenging Ext. P2 order, before an appropriate forum. 24. No order as to costs.