Chakkan Ayyappan vs Narayanan Namboodiri and Others

S. Padmanabhan, J.—While ordering resumption of land from a tenant, the Land Tribunal is bound to direct the applicant to make payments to extinguish the rights of the cultivating tenant and the intermediaries; if any, who would be affected by such resumption. u/s 22 (2), the direction should be to make the payment within such time and in such manner as may be prescribed. Prescribed means prescribed under the rules. Prescribed period under Rule 11 (2) of the Tenancy Rules is 30 days from the date of the order. The jurisdiction of the Land Tribunal under sec. 22(2) is therefore to direct in the resumption order to make the payment within a time which could only be within 30 days. When once the time is so fixed sub section (3) authorises the Court to extend the time for sufficient reasons. "What is provided under Rule 130 of the Tenancy Rules is only a general provision just like sec. 148of the CPC authorising the authorities under the Land Reforms Act to extend the period fixed or granted by them for the doing of any act prescribed or allowed by the Rules. Such general power is available even after the period originally fixed or granted may have expired. The question is whether that power under the general provision in Rule 130 to extend time even though the period originally fixed or granted may have expired is available u/s 22(3). The answer must be a definite ''no'' because of sec. 22 (8) which says that when the landlord fails to deposit the amount in accordance with the directions of the Land Tribunal, the order of resumption shall not only be treated as cancelled, but the landlord shall have no further right or resumption also. In this case, the time fixed in the resumption order dated 30-6-1978 for payment was exactly the statutory period of 30 days provided in Rule 11 (2) The deposit was not made within that period and no extension of time was asked for or granted on or before the expiry of that date. Just like section 148of the Civil Procedure Code, Rule 130 of the Tenancy Rules also does not authorise extension of time fixed by the Act or Rules after the expiry of the period. Extension of time even after the expiry of the original period contemplated in Rule 130 is only regarding time fixed by the Land Tribunal. Such powers are necessary for Courts or Tribunals in doing justice or implement orders in given cases. That is only a general provision which must be subject and subservient to the special provisions contained in the Act. Even otherwise the Rules must be in conformity with the provisions of the Act and cannot be in derogation of it or in conflict with it. Any rule which is inconsistent with the provisions of the Act cannot prevail over the Act in spite of its statutory force and to the extent of the inconsistency or repugnancy it must be invalid. Rules are made under the provisions of the Act for carrying out its objects and purposes by implementation and hence must be within the four walls of the statutory provisions Further a general provision intended to meet general contingencies must always yield to special provisions made to meet particular contingencies. The power to extend time under sec. 20 (3) could have operation only subject to sec. 20 (8) and the general provision contained in Rule 130 cannot enlarge the scope of the power under sec. 22 (3).

Section 22(8) provides for the consequences of default in depositing the amount in accordance with the direction of the Land Tribunal. On failure to deposit the consequences take effect automatically by operation of law without any further order. By legal fiction the order for resumption is then treated as automatically cancelled resulting in the further penal consequence of the landlord being disabled to have any further right of resumption. By operation of law the order thus becomes non-est and completely erased as if no such order was passed. The effect is to confer an indefeasible benefit to the tenant by giving him the vested right of immunity from further resumption and impose a permanent disability on the landlord making further resumption by him impossible. That means vested rights and permanent disabilities are automatically created by a legal fiction as a penalty for the inaction. The right conferred under sub sec.(3) for extension of time will have to be compromised with this provision. Both provisions must have co-existence if possible. That must be the object of interpretation. The period provided under an order which has become non-est and thus impossible of execution cannot be extended. Extension pre-supposes the existence of an order which is executable if urns for execution is extended. When the order itself has become non- existent, extension of time is out of question. Sub sec. (3) cannot be interpreted in such a way as to nullify the mandatory effect of sub sec. (8). If the statutory period was allowed to run out resulting in the non-existence of an executable order, there is no occasion to exercise the jurisdiction under sub sec. (3). The only possible interpretation is that the power under sub sec.(3) must be sought for and exercised before the period prescribed under Rule 11(2). When once that is rot done and the deposit is not made and the consequences under sub sec. (8) take effect there is no question of exercising the power under sub sec.(3). The order becomes dead and a ''dead order cannot be brought to life. Extension of life could be given only during its life time. I am fortified in these positions by the decisions in Kunhi Pathu v. Ayshu (1972 K.L.T 1014 and Theyyunni Nair v. Muhammed (1977 K.L.N 113 Case notes Case No. 95)

The landlord has not filed any appeal from the order and he had no need to do so also. It is true that the tenant filed an appeal. But there was no stay of operation of the order. The filing or pendency of the appeal cannot automatically operate as stay of the order for resumption and it will not have the effect of extending the time for deposit or keeping the order alive beyond the statutory period for deposit unless the time is extended by orders of Court. That appeal was dismissed, but the dismissal will not give any fresh starting point for deposit from that date. The pendency of appeal did not in any way prevent deposit or execution of the order.

After the period for deposit has run out by the end of July 1978 and sub sec. (8) has taken effect the order has become dead. Thereafter on 31-8-1978 the respondents filed a lodgment schedule with an application and obtained an order on 31-8-1978 to receive the amount. That was without notice, By that order itself the Land Tribunal has not extended time. Only a direction to receive the amount was made. Deposit was made on 1-9-1978 as per that order. Apart from the question that the Land Tribunal had then no jurisdiction to extend the time, no such power was exercised also. Extension of time under sec. 22 (3) is one involving rights of parties and has to be made by the application of mind on a motion for that purpose and it is not a matter to be inferred from the permission mechanically given to receive the amount on the basis of a lodgment schedule. Further that order is without notice and as such not binding on the tenant. An order under sec. 20 (3) is having serious impact on the right of the tenant accrued under sec. 22 (8) and it has to be passed after due consideration.

Execution petition was filed only on 14-3-1979. Head quarters of the Land Tribunal is at Alleppey and it has Camp sitting at Muvattupuzha also. Notice on the execution petition was ordered and execution petition was posted to 24-3-1979 in the Camp sitting at Muvattupuzha. On that day, there was no sitting and hence the case was adjourned by notification to the same camp for 23-4-1979. In between these two dates the respondents stealthily moved the Land Tribunal at its head quarters without notice to the revision petitioner for advancing the posting. Posting was advanced and delivery taken without notice The posting was advanced without notice to 28-3-1979 and delivery was obtained on 5-4-1979. Probably this tactics was adopted because they were aware that with notice an order and delivery are not possible.

Getting knowledge of these facts later the revision petitioners filed an appeal (L.R.A.S 334 of 1979). It was allowed on 21-6-1982. Landlords took up the matter before this Court in C.R.P 2521 of 1983 and pleaded that the appeal was out of time. The matter was remanded. Then the petitioner applied to condone delay, if any, to file the appeal. That was allowed but the appeal was heard and dismissed on 24-4-1985. Revision is against that judgment.

At any rate the revision has to be allowed. Even without going into the merits the order receiving the amount and delivery without notice will have to be set aside for the simple reason that the principles of natural justice were not followed. On the merits also the respondents have no case. When the appeal was allowed in the first instance before remand the appellate authority found that the deposit was out of time and no extension was sought for and granted and on that ground the order has become inexecutable. But after remand the appellate authority, for reasons best known to it alone, changed the plate and said that the Land Tribunal was competent to extend time and the order to receive the amount must be construed as an order extending time. In a matter materially affecting the rights of parties there cannot be any such inference. The order itself must show that there was an application within time and on application of mind the time was extended within the period. In this respect the appellate authority sought shelter from an unreported common order of this Court in C.R.P. Nos. 3744 and 3745 of 1977. That was a resumption order in which amounts were due to the landlord from the tenant by way of arrears, of rent on a decree obtained by him. Within two days of the resumption order the landlord filed a petition to adjust towards the deposit by set off the amount due to him from the tenant under the decree. That petition was pending for 15 months and then dismissed. The application for extension of time filed thereafter was dismissed. It was in the revision against that order that the above decision was rendered. 1972 KLT 1014 and 1977 K.L.N. 113 Case 95 were referred to and the principles accepted, but decision was rendered on the peculiar facts of that case on the basis of the circumstances mentioned above. That cannot be cited as an authority because it is applicable only to the facts of that case.

Thereafter the counsel for the respondents, in an attempt to persuade me to disagree with the above two decisions and make a reference to a larger Bench, cited some other decisions. One of them is Kamalakshi Amma v. Narayanan Nair (1982 KLT 91). That was a case in which the order for resumption did not fix any time limit for deposit of the amount. His Lordship M. P. Menon, J. said that u/s 22 (2) there is an obligation on the Tribunal to fix the time for deposit and Rule 11(2) only says that the time so fixed should not be more than 30 days. Without fixing time no extension could be granted. It was in that context and on account of the fact that no party should suffer due to the mistake of the Court that it was said that in appropriate cases time could be extended under sec. 22 (3) beyond 30 days. The above two decisions were not dissented to Power to ''extend time under sec. 22(3) and Rule 130 cannot be disputed also in appropriate cases. That decision is of no avail in view of the wording of sec. 22(8) that the penal consequeuces is because of non-compliance of the direction of the Land Tribunal to make the deposit.

Valsala Kumari and others v. Becyathumma and others (1982 K.L.T.S. N Pago 15 Case No. 25) is another decision. Two principles laid down in that decision are: (1) when the order of the Land Tribunal is found unsustainable in law and is Table to be set aside, there is no substance in the plea that the order is as good as cancelled by operation of sec. 22(8) and hence the landlord is precluded from questioning the validity of the order in appropriate proceedings, and (2) when the order is reopened in appeal or revision and different portion of the holding is ordered to be resumed, compensation will have to be refixed and the same could be deposited within time allowed then and there is no question of sec. 22 (8) in such a case operating on the basis of the original order. These are cases in which the appellate or revisional authority set aside or modified the order. In such a case it is the appellate or revisional order which alone could have force because the original order becomes superseded and erased. There is no question of an order which has been set aside or materially modified continuing to determine the rights of the parties or operating to have the penal consequences under sec. 22 (8) disabling the landlord or giving a vested right to the tenant when the appellate or revisional order provides otherwise. Hence that decision is also not of any help. In these cases the appellate or revisional order alone could govern the rights. That cannot be equated with the contingency under sec. 22(8). That decision will not in any way go against 1972 KLT 1014 or 1977 KLN. 113 Case No. 95.

Sreedharan v. Mohammed Kunhi (1978 KLT 20) has only considered sec. 11 (2) (c) of the Buildings (Lease and Rent Control) Act and said that the power to allow "such further period" is inherent in the provision which specifically provides for it and there is nothing in the Act to suggest that the power to enlarge the period could be exercised only before and not after the expiry of the period. That is in the provisions of that Act. Rent-Control Act is not having a provision similar to sec. 22 (8)of the Kerala Land Reforms Act and the wording of sec. 11 (2) (c) is also not identical to the provisions of sec. 22(3) or the other provisions of sec. 22. Different statutes may have different provisions. It may not be correct to say that the interpretation of the provisions of one Act must be applicable to the provisions of another Act especially when they have material differences. In order to apply a legal interpretation the legal provisions, facts, context and circumstances must be same or identical. There is no basis for the argument advanced on that decision also. The scope of sec. 22 (3) read with sec. 22 (8) of the Kerala Land Reforms Act cannot be fit in with the power of extension of time for deposit under sec. 11 (2) (c) of the Rent Control Act.

Another decision cited was Janaky Amma v. Krishnan (1978 K.L.T 463). That decision only said that the Court has inherent power under sec. 151 C.P.C. to extend time fixed for payment of deficit court fee even after a conditional order in that behalf has worked itself out by expiry of time granted for that, and such power can be exercised on a petition filed for that purpose after expiry of the period originally fixed. That decision also has no application here for reasons more than one. Under sec. 151 C.P.C. the inherent power of all Civil Courts and under sec. 482 Cr.P.C. the inherent powers of the High Court are saved for the purpose of making such orders for the ends of justice or preventing abuse of process of Court. The provisions of the CPC or Criminal Procedure Code are not made applicable to proceedings under the Kerala Land Reforms Act. Further inherent powers are not intended to be used when there are express provisions for or against. These powers are to be exercised to meet a contingency to secure ends of justice or prevent abuse when no other provisions are there to achieve that purpose of meeting the ends of justice for which Courts exist. It cannot be exercised to overcome the effect of a statutory provision like sec. 22 (8)of the CPC Land Reforms Act or to give a different contextual interpretation to sec. 22(3).

Section 108of the Kerala Land Reforms Act making the provisions of sec. 5 of the Limitation Act applicable also will not help the petitioner. That provision is applicable for extension of time when sufficient cause is shown only in cases where the Court or Tribunal is having the jurisdiction or power to extend time. Section 5of the Limitation Act cannot be extended to areas where the power of extension itself is barred. Sufficient cause could be shown and accepted only if on that sufficient cause enlargement of the normal time is possible. When there is an automatic cessation of time by expiry of a period to do a thing section 5 is out of place. That argument would have been relevant if extension was applied for before expiry of the period and the question of extension was considered within that period when the Tribunal could have thought to extension. Even though section 148 C.P.C. and Rule 130 of the Tenancy Rules are identical, both provide only extension, of time fixed in orders and not statutory periods fixed. Thus this is a cafe in which the appellate authority misconstrued facts and law and gave a wrong decision. Receipt of the deposit and order for delivery on the basis of a dead order is illegal. Civil Revision Petition is allowed and the orders of the Land Tribunal and Appellate Authority as well as delivery effected by the Land Tribunal are quashed. The order for resumption stood cancelled and the respondents were not entitled to get delivery. Revision petitioner is entitled to restitution. The Land Tribunal is directed to take steps immediately to redeliver the property to the revision petitioner. Respondents 1 and 2 will pay the costs of the revision petitioner.