Bharathi Lakshmi vs Sanku Krishnan and Others

Varghese Kalliath, J.—The revision petitioner challenges the judgment of the Appellate Authority in A.A. 3 of 1984. The Appellate Authority passed a cryptic judgment holding "appeal is against E.P. which is not maintainable u/s 102 of the K.L.R. Act. Hence dismissed". The Land Tribunal u/s 22 of the Kerala Land Reforms Act, for, short the Act, found that the land-owner is entitled to resume (sic) cents of property from the southern portion shown in red colour in Ext. P4 plan. The land-owner deposited the amount payable to the tenant as early as on 29-7-1971. In fact, he initiated proceedings for resumption as early as in 1965.

The provisions contained in the Act relating to resumption make it abundantly clear that the Tribunal is obliged while passing an order of resumption to determine finally the amount that is payable to the tenant. The provision reads thus:

22(3). The Land Tribunal shall duly enquire into the application and pass appropriate orders thereon. Where the order allows resumption, it shall specify the extent and location of the land allowed to be resumed, the rent payable in respect of the portion, if any, that would be left after resumption and such other particulars as may be prescribed and directing the landlord to make, within such time and in such manner as may be prescribed, payments to extinguish the rights of the cultivating tenant and the intermediaries, if any, who would be effected by such resumption.?

Sub-section (3) of section 22 of the Act empowers the Land Tribunal to extend the time mentioned in sub-section (2) of section 22 if the Tribunal is satisfied that for extending time there are sufficient reasons. In sub-section (7) of section 22 of the Act, it is provided that where a landlord deposits the amount in accordance with the directions of Land Tribunal, the Land Tribunal shall put the landlord in possession of the land allowed to be resumed, if need be by removing any person who refuses to vacate the same.

Sub-section (7) of section 22 of the Act is an amended provision The amendment was made by Act 35 of 1969. Before the amendment, the sub-section read thus:

22 (7) An order for resumption may be executed through the court as if the order were a decree passed by it.

I feel that though the amendment was made making the Tribunal the authority to put the landlord in possession of the land allowed to be resumed after removing any person who refuses to vacate, it was intended to facilitate the proceedings for actual delivery of possession more effective and speedy. The proverbial difficulty of a suitor, after getting a degree for possession, to have real and actual possession from the judgment-debtor the legislative took note of and wanted to obviate the difficulties to a certain extent by amending section 22(7) of the Act by giving the power of effecting actual delivery of the property to the Tribunal itself.

In this case, the Appellate Authority took the view that no appeal would lie against an order passed by the Tribunal u/s 22(7) of the Act. According to the counsel for the respondent, the order that is contemplated, which can be the subject of an appeal u/s 102 of the Act, is only an order u/s 22 (2) of the Act. The Appellate Authority has taken this view and said that the appeal is not maintainable. Here, in this case, the landlord who got the order of resumption has done whatever that is required under law. In spite of his compliance with the requirements of the law, he did not obtain actual delivery of the property, namely, 171/2 cents of property ordered to be resumed. For obtaining actual delivery of possession, he put in a petition u/s 22(2) and (7) of the Act. The revision petitioner raised a contention that he is entitled to get more value for his improvements. This contention was not accepted by the Land Tribunal. The Land Tribunal rejected the contention and allowed resumption of property and directed that the revision petitioner should deliver to the applicant the property ordered to be resumed by its order dated 5-4-1974. This order was challenged by the revision petitioner in appeal.

Though, perhaps, there may not be much on merits, the Appellate Authority ought to have considered the matter on merits. But, it refused to consider the question on the basis that no appeal is maintainable u/s 102 of the Act and dismissed the appeal. This dismissal is challenged by the revision petitioner.

Though, prima facie, I am not satisfied with the merits of the contentions raised by the revision petitioner in the matter of the reassessment of the value of improvements, I am not expressing any final opinion about the validity of the contention of the revision petitioner for a reassessment of the value of improvements. But, I feel that I have to deal with the question whether an appeal is maintainable or not in the circumstances of the case. In this context I shall refer to a decision reported in Parukutty Amma v. Kochnunny (1978 K.L.T 783) wherein M.P. Menon J. has said:

Both under the principal Act and after its amendment, the landlord has to apply to the Land Tribunal and obtain an order allowing resumption. The order is to be passed after an enquiry, and it is to specify the location of the portion to be resumed, the rent and other prescribed particulars, and it should also contain directions for payments, Thus there is no change in the machinery and the procedure The only perceptible change is effected by the amendment to sub section (7) of section 22. Under the Principal Act the resumption order was to be executed through a civil court as if, it was a decree passed by it while, after the amendment, the forum for ''execution'' (if that term can be used) is the Land Tribunal. Sub-section (7) of section 22is important because what was pending in this case, on 1-1-1970, was an application under that sub-section as it originally stood. All the earlier stages had been covered. Therefore, all that the Land Tribunal had to do in I. A. 6/73 was to put the landlord in possession by removing obstruction, if any, since the deposits had been admittedly made long before. In exercising this limited jurisdiction under sub-section (7), can the Land Tribunal reopen the earlier order passed u/s 22 (2) ? In terms section 108(3) does not refer to such an enlargement of jurisdiction.

Section 102of the Act provides a provision for appeal from orders passed by the Land Tribunal u/s 22 of the Act. Counsel for the respondent submitted that u/s 22, the only order that is contemplated is an order u/s (2) of section 22 and the order challenged by the revision petitioner before the Appellate Authority is not an order under sub-section (2) of section 22 and as such, no appeal would lie. It has to be noted, that in section 102, sub-section (2) of section 22 is not specifically mentioned. It only said that orders u/s 22 are appealable. I feel that the Tribunal can pass order not only under sub-section (2) of section 22, but also under other sub-sections of section 22.

Section 22(3) of the Act gives power to the Land Tribunal to extend time under sub-section (2) of section 22 for making payment to the tenant by the landlord where resumption is ordered u/s 22(2). The Land Tribunal is given the power to extend time for sufficient reason under sub-section (3) of section 22. In a case where a Tribunal refuses to extend time after showing proper and valid reasons, what is the remedy of the aggrieved party? Can it be said that an order refusing to extend time even after Showing valid reasons is not an order u/s 22? There can be a converse case also. For no good reasons, if the Tribunal passes an order granting time under sub-section (3) of section 22, that also will be an order u/s 22. So, the argument that there can be only an appealable order u/s 22(2) is without a proper foundation. I feel that there can be an order u/s 22(3) as effective as an order tinder sub-section 2 of section 22 for the purpose of an appeal. I have no hesitation to extend this principle in the matter of orders passed under sub-section (7) of section 22 Sub-section (7) of section 22 empowers the Land Tribunal with the power to put the landlord in possession of land allowed to be resumed.

Whatever be the procedural formalities to be complied with, and whatever be the orders that are obtained by a suitor in a case for recovery of property, or for resumption of property, unless and until a suitor is put in actual possession of the property, for which purpose he has resorted the help of the court, there is no practical satisfaction for a suitor to have orders or judgments declaring that he is entitled to possession or recovery of property. The real relief, which is the end result of all the procedural formalities, is the actual delivery of the property to the ''degree holder for which he has got a decree or order This is done by the Tribunal by exercising its power u/s 22(7) of the Act. This power is the most effective part of the power that has been granted to the Tribunal u/s 22and an order under sub-section (7) of section 22is a very effective order and so, there is no point in saying that no appeal would lie against such an order. The position can be made more clear if we contemplate. Take an unjust order of the Tribunal refusing to give delivery u/s 22(7) accepting some trivial and flimsy contentions of the tenant and if I hold that such an order is not appealable u/s 102, it will be against justice and against what is intended by the legislature u/s 102. So, I feel that the appeal is maintainable. In this case, what the Appellate Authority has done is not correct. So, I have to allow the revision.

In the result, I set aside the judgment of the Appellate Authority and allow the revision. The Appellate Authority is directed to consider the appeal on merits and dispose of the same without any delay. The Appellate Authority has to remember that this case was filed as early as in 1965 and the landlord got an order in 1974 and what he was required to do as per the order he has done. In the circumstances, I direct the Appellate Authority to dispose of the appeal within six weeks from the date of receipt of records by it. Send back the records immediately.