Subramonian vs Karthiayani

Khalid, J.—This revision has been posted before a Division Bench on reference by a learned Judge who felt, that it involved important questions of law. The Petitioner is the 1st judgment-debtor. This C.R.P. arises out of an order in execution of a decree for redemption. The decree was passed on 31st July 1959. This was confirmed in appeal. After coming into force of Act 35 of 1969 the Petitioner mortgagee put forward a case that he was entitled to the benefits of Section 4-A of the said Act and that therefore the mortgagor-decree-holder was not entitled to recover possession. Realising this difficulty the decree-holder filed an application on 24th December 1970 for resumption of a portion of the decree schedule property since he was a small holder. The prayer for resumption was of one half of the holding and 50 cents in addition for the purpose of construction of a residential building for the members of his family. Ultimately this request was allowed on 15th October 1973. A commission was issued to demarcate the area allowed to be resumed and for ascertaining the value of improvements. The Commissioner filed his report on 9th September 1974. Thereafter the Petitioner filed E.A. 524 of 1974 to review the order passed on 15th October 1973 along with an application to condone the delay since it was filed but of time. Both the applications were dismissed. Thereafter the decree-holder filed E.A. 596 of 1979 for delivery of the property allowed to be resumed. This was opposed by the judgment-debtor. According to him, the order of resumption is bad, having been passed by a civil court which had no jurisdiction to entertain such an application and also on the ground that the petition was filed beyond the period of limitation. The court below after considering the rival contentions overruled the objections and directed deposit of the value of improvements to order delivery of the property. Hence this revision.

This petition can be disposed of without much of a discussion on the various questions of law raised on the short ground that the order dated 15th October 1973 which was sought to be reviewed without success and which is binding on the Petitioner, stands. The belated attempt now to get the said order avoided with the plea of want of jurisdiction, etc., cannot be entertained. He did not challenge the order by filing a revision, or by taking other effective steps. The order of resumption has therefore to stand. Even so, in view of the lengthy submissions made before us inviting us to various provisions of law to contend that the said order is without jurisdiction, we feel persuaded to refer to such contentions briefly and to answer them.

The Petitioner''s contentions are these : (1) An application for resumption has to be made to the Land Tribunal and not to the court. The order in dispute is passed by a civil court which has no jurisdiction to deal with the matter and hence the order is a nullity. (2) Section 132(3)(c) does not apply to this case. Section 108(3) of the amending Act does not apply since there is no proceeding pending on 1st January 1970. (3) In any case the petition is barred by limitation. The petition for resumption should have been filed within one year of coming into force of Act 1 of 1964. The extended period is not available to the decree-holder in this case. We will deal with these objections one by one.

The Petitioner''s counsel submits that the order passed by the execution court is without jurisdiction because a resumption application can be dealt with only by the Land Tribunal within whose jurisdiction the land is situate and not by a civil court. Since the order of resumption in this case was passed by a civil court, it is one without jurisdiction and hence a nullity. We do not think that we can agree with this contention. It is true that Section 22 of the Act provides that an application for resumption should be made to the Land Tribunal having jurisdiction. But Section 132(3)(c) is an exception to Section 22. The Section reads as follows:

Repeal and savings.--(1) * * *

(2) * * *

(3) (a) * * *

(b) * * *

(c)(i) where the decree-holder, Plaintiff, Appellant or Petitioner, as the case may be, is a person entitled to resumption of land under this Act, he shall have the right to apply to the Court to allow resumption of the holding or any part thereof to which he is entitled;

(ii) * * *

(iii) the Court shall dispose of the application as if it were an application for resumption before the Land Tribunal under this Act;

* * *

The above section, therefore, clearly enables persons described therein to apply to the court itself to allow resumption if he is entitled to resumption of land under the Act. Sub-clause (iii) authorises the court to dispose of the application as if it is an application for resumption before the Tribunal. This contention, therefore, was rightly rejected by the Court below.

The next question that has to be considered is whether the application for resumption is within time or not. The application in this case was filed on 24th December 1970 which is beyond six months but within one year from the commencement of Act 35 of 1969. It is not disputed that the decree-holder in this case is a small holder. The transaction involved in this case is not a protected tenancy under Act 1 of 1964. It was declared a deemed tenancy by Act 35 of 1969 and therefore this tenancy came into existence only on 1st January 1970. The Petitioner''s counsel has two-fold submissions to make to defeat the resumption application. According to him, an application u/s 132(3)(c) has to be made within one year from the commencement of Act I of 1964. If the provisions of the Amendment Act, Act 35 of 1969, are to be invoked, he submits, there should be some proceedings pending at the commencement of Act 35 of 1969. In other words, his submission is that the decree-holder can take advantage of the provisions of the amending Act only if his execution application was pending on 1st January 1970. In this case no proceedings were pending at the commencement of Act 35 of 1969.

Reading Section 132(c)(ii) it admits of no doubt that an application under Sub-clause (i) of that Section has to be made within one year from the commencement of Act 1 of 1964. Section 4-A was introduced only with effect from 1st January 1970. It follows that any proceeding based on the benefit conferred by that Section can be filed only after 1st January 1970. If the Petitioner''s submission is to be accepted, no person who gets a benefit under one or the other provisions of Act 35 of 1969 for resumption as a small holder will in fact be benefited. The Section cannot be deemed to impose an impossible obligation of filing a petition much anterior to the date of conferment of the said benefit. This cannot be the intendment of the legislature. Section 132(3)(c)(ii) has therefore to be read in its context and has to be understood to impose the one year period only on persons who have the right of resumption under the principal Act. The bar of limitation directed against the decree holder''s application on this contention has to fail.

Now we will consider the submission made on Section 108(3) of the Amendment Act. This Section is only an enabling provision permitting pending proceedings at the commencement of this Section to be disposed of in accordance with the provisions of the principal Act as amended by Act 35 of 1969. Though this Section was introduced by Section 22 of Act 25 of 1971, it is deemed to have come into force on 1st January 1970. What is contended by the Petitioner''s counsel is that since no proceedings at the instance of the decree-holder were pending on 1st January 1970 and since the resumption application was filed after 1st January 1970, the decree-holder is disentitled to claim the benefit of the provisions of Act 35 of 1969. This submission also is without force. Section 108(3) has to be read subject to Section 132(3)(c). A resumption application by a small holder who gets an additional benefit by Act 35 of 1969 can be filed only after 1st January 1970 and the Court has to dispose of that application in accordance with the provisions of the principal Act as amended by Act 35 of 1969. Section 108(3) relates only to pending proceedings. It does not follow that proceedings taken after 1st January 1970, seeking the new benefits conferred by the amendment Act, need not be disposed of in accordance with the provisions of the said Act. To say so, is to render the Amendment Act unserviceable. Therefore the submission that the proceedings in question, will not be governed by the provisions of the Amendment Act, since there were no proceedings pending at the commencement of the Act has no force and is rejected.

However, the more important question that requires to be answered is whether the application for resumption in question is barred by limitation or not. In other words, what is the period of limitation for such an application. The Petitioner''s counsel developed his argument as follows. The application for resumption u/s 132(3)(c)(ii) has to be made within one year from the commencement of Act 1 of 1964. Section 18 states that an application in respect of tenancies subsisting at the commencement of the principal Act has to be filed within a period of one year from its commencement. Under the proviso to Section 18(1) introduced by Act 35 of 1969 the following persons are given an extension of this period by six months from the commencement of Act 35 of 1969, that is 1st January 1970.

(i) a minor; or

(ii) a person of unsound mind; or

(iii) a member of the Armed Forces or a seaman and the tenant is entitled to fixity of tenure; or

(iv) a legal representative of such member or seaman was the landlord of the land in respect of which resumption is claimed.

Here the application is made on 24th December 1970 by a landowner who does not answer to the description given in the proviso. According to the Petitioner''s counsel, it does not stand to reason that landlords coming within the disability clause mentioned above, get only six months period from 1st January 1970 while landlords who do not suffer from any such disability, are not fettered by any limitation for filing resumption application. He reinforces this submission with the plea that u/s 72 of the Act all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants, etc. entitled to fixity of tenure shall vest in the Government free from all encumbrances and as such no landlord whose rights are vested in the Government can make an application for resumption unless specifically entitled to do so by any of the provisions of the Act. According to him, the only exemption to this is in Section 72(4) and even here vesting takes place on the expiry of six months from the commencement of the Amendment Act. He invites us to Section 13 also for this purpose. Section 72(4) reads:

Vesting of landlord''s rights in Government.--

(1) * * *

(4) Where in the case of a holding or part of a holding, the landowner or an intermediary is a minor or a person of unsound mind or a member of the Armed Forces or a seaman or a legal representative of any such member or seaman, or a small holder, the right, title and interest of the landowner and intermediaries, if any, in respect of such holding or part of a holding shall vest in the Government--

(a) on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or on the date notified under Sub-section (1), whichever is later, in cases where no application for resumption of the holding or part of the holding has been preferred;

(b) in any case where application for resumption has been preferred, on the date on which the order rejecting such application, either in part or in full, has become final or on the date notified under Sub-section (1), whichever is later.

According to him, since the landowner in this case does not fall within any of the clauses enumerated above, he has no right to file an application for resumption his rights having vested in the Government on the appointed date, namely, 1st January 1970 and since no proceeding were pending on that date.

We will now consider the plea of limitation with reference to the provision in the Act and the decisions bearing on it. We will first see how the court below decided this question.

The question of limitation for the application for resumption was considered by the court below with reference to two decisions of this Court reported in Raghavan Nair v. Narayana Panicker 1976 KLT 369 by Janaki Amma J. and Devaki Antharjanam and Ors. v. Narayanan Nair and Anr. 1977 K.L.R. 111 by Bhaskaran J. The court below relied upon 1976 KLT 369 which according to it, was direct to the point. Since the application for resumption was filed within one year from 1st January 1970, it was held to be within time. The Petitioner''s counsel submits that this conclusion is defective.

In 1976 KLT 369, Janaki Amma, J. held that the limitation of one year mentioned in Section 18(1) held good only in the case of transactions which were tenancies before the passing of Act 35 of 1969 and not to transactions which were declared as tenancies from 1st January 1970. Bhaskaran, J, in 1977 K.L.N. 111 (in C.R.P. No. 2165 of 1976-A) struck a slightly different note. The apparent conflict between these two decisions was resolved by a Division Bench in the decision reported in Ravindra Nathan Nair v. Ambujakshi Amma ILR 1983 Ker 269 Bhaskaran J. speaking for the Bench has said that there is no divergence of opinion in regard to the point of time in the two decisions. According to the learned Judge the two decisions are complementary to, and not conflicting with, each other. In the order in C.R.P. 2165 of 1976 (1977 K.L.N. 111) Bhaskaran, J. said as follows:

It is clear beyond doubt that in all cases where resumption application has not been made before the lapse of the period of six months from the commencement of the amending Act (Act 35 of 1969), there would be a bar against the landlord for invoking the resumption provisions in view of the fact, by operation of law, the tenant, by then, acquired the right to fixity of tenure.

In 1976 KLT 369, Janaki Amma, J. has this to say regarding the period within which an application for resumption has to be filed by persons to whom the right of resumption becomes available from 1st January 1970 that is, after the expiry of the period prescribed u/s 18. After noting the expression "in respect of tenancies subsisting at the commencement of this Act", the learned Judge observes:

This means that the limitation of one year mentioned in Section 18(1) holds good only in the case of transactions which were tenancies before the passing of Act 35 of 1969 and not transactions which are declared as tenancies under that Act. This interpretation no doubt leads to the position that in the case of tenancies declared as such under Act 35 of 1969, there is no time limit fixed for filing application for resumption; but the words used in the Act do not permit a different interpretation.

This observation indicates that the learned Judge was of the view that for those to whom the right of resumption became available only from 1st January 1970, there is no time limit imposed. The Division Bench while observing that there is no conflict between these two decisions took care to demur at the above observation by stating in paragraph 10 as:

The observation in paragraph 4 in Raghavan Nair''s case "this interpretation, no doubt, leads to the position that in the case of tenancies declared as such under Act 35 of 1969, there is no time limit fixed for filing application for resumption" does not appear to be quite warranted.

This observation by the Division Bench in paragraph 10 is followed by the following observation in paragraph 12:

The combined effect of the rulings in Raghavan Nair''s case and Devaki Antharjanam''s case is that the reference to "the commencement of this Act" in Sub-section (1) of Section 18 of the Act has to be interpreted as referring to the commencement of the Principal Act (Act I of 1954, before its amendment by Act 35 of 1969); and the conditions and restrictions subject to which alone application for resumption could be made, mentioned in that Sub-section, are applicable to the cases of tenancies subsisting at the time of the commencement of the Principal Act, not to tenancies declared or created by the provisions of Act 35 of 1969.

In Devaki Antharjanam''s case (C.R.P. No. 2155 of 1976) the resumption application was by a mother and two minor children, and it was filed on 30th December 1970. The application was held to be barred because it was six months beyond 1st January 1970. In 1976 KLT 369 the application for resumption was made after 24th July 1970, the date on which the decree upholding the tenancy right u/s 7-B was passed. In other words, the application was six months after 1st January 1970. The said application was held to be not barred because the limitation prescribed in Section 18(1) of the Act was found to be inapplicable. In ILR 1983 Ker 269 the application for resumption was made on 5th March 1970, which, according to the Division Bench, being "long before the expiry of the period fixed for the vesting in Government of the right, title and interest of the small holders in the land, under Sub-section (4) of Section 72 of the Act" was not lost "by the time-bar stated in Section 18(1) of the Act". On a close reading of this Bench decision, we hold that the Bench has endorsed the view expressed in 1976 KLT 369 and some of the observations which might appear to be against it are obiter.

If none of the provisions of the Act prescribe any period of limitation for application for resumption by small holders, who obtained right from 1st January 1970, can that right be indefinitely postponed. The question can be approached safely in a slightly different manner to clarify the observation made by Janaki Amma, J. in 1976 KLT 369, [approved in ILR 1983 Ker 269] that there is no time limit for filing application for resumption for tenancies created after 1st January 1970. Section 22 provides for an application by a landlord desiring to resume any land to be made to the Land Tribunal within whose jurisdiction the land is situate. Section 132(3)(c)(i) deals with applications for resumption to the court by persons satisfying the requirements of the said Section. Section 18 does not refer to application u/s 132(3)(c)(i). Therefore the period within which an application u/s 132(3)(c)(i) for resumption has to be made, has to be located in the said Section itself. The difficulty arises when we try to do so. Section 132(3)(c)(ii). speaks only of applications for resumption regarding tenancies existing at the commencement of the principal Act. On the wording of the Section a contrary view is not possible. Section 132 did not undergo any change when Act 35 of 1969 was enacted. Thus the position is that the Land Reforms Act does not contain any provision that prescribes the period of limitation for application for resumption by small holders to whom the right accrued on and from 1st January 1970. According to us, the difficulty can be resolved by resort to the general law. Here resumption applications are to the court and not to the Land Tribunal. Does any provision of law prescribe the period of limitation for proceedings taken to courts. In our view the decision in Kerala State Electricity Board v. T.P.K. 1976 KLT 810 supplies the answer. There the Supreme Court (a Bench of three Judges) was dealing with the question of the period of limitation for an application for payment of compensation under the Telegraph Act before the District Court. The Supreme Court held that Article 137 of the limitation Act applied to any petition or application filed under any Act to a civil court and in so doing differed from the view earlier taken by a Bench of two judges of the Supreme Court, contra in the following words:

The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two judge Bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.

We feel that in the circumstances of the case, the safer course to be adopted is to follow the guideline prescribed by the Supreme Court in the above decision and to hold that a landowner who gets a new right under the amending Act is governed by Article 137 of the Limitation Act to present an application for resumption. The right accrued to him from 1st January 1970. He has three years from that date to make the application. The application in this case filed on 24th December 1970 is thus within time.

We may note a Bench decision of this Court in C.R.P. No. 743 of 1977 to which one of us was a party. In that case the application for resumption was made only on 23rd February 1974. In that order, the decision in 1976 KLT 369 was noted but not considered. The reasoning in that order is not similar to the one that we have adopted in this case. However, the conclusion is correct because in no case can an application for resumption be sustainable which is filed only on 23rd February 1974.

The Petitioner''s counsel wanted us to consider the direction in the order passed by the court below regarding the demarcation of the property allowed to be resumed. The court below has said that the decree-holder be entitled to recovery of possession of A and B plots in Ext. C-2 plan. We are not told how this direction is bad. The court below has observed that the direction is in conformity with the order passed on 15th October 1973 which order stands in view of the dismissal of the review petition. We are not satisfied that the court below has committed any error in making the direction that it did.

For the foregoing reasons we hold that the petition has to fail. The Petitioner cannot sustain this revision in the face of the dismissal order of his application to review the resumption order. What is more, the order under revision does not suffer from any jurisdictional error and there is no substantial injury to the Petitioner. The C.R.P. is accordingly dismissed with a direction to the parties to bear their costs.