Kerala High Court
Chakkoru vs Smt.Chandramathy on 17 February, 2009
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23583 of 2005(G)
1. CHAKKORU, S/O. LONA,
... Petitioner
Vs
1. SMT.CHANDRAMATHY, W/O. KUNNAMTHULLY
... Respondent
2. CHIRALAYAM SWAROOPAM KUNHURAJAVU,
3. CHIRALAYAM SWAROOPAM KUNHUNNIRAJAVU,
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.N.P.SAMUEL
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :17/02/2009
O R D E R
P.R. RAMACHANDRA MENON, J.
~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C) No. 23583 OF 2005
~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 17th day of February, 2009
JUDGMENT
Ext.P2 order passed by the District Court, Trichur in C.M. Appeal No. 152 of 2000, whereby, Ext.P1 order passed by the Settlement Officer under the Kanam Tenancy Abolition Act, 1976 ('Act' in short), without hearing the respondent herein (who is stated aggrieved party/interested party) remanding the matter for fresh consideration is under challenge in this writ petition.
2. The petitioner had filed an application before the Special Tahsildar, Trichur claiming possession and 'kanam' right of the property comprised in survey No. 1053, which was considered and decided by the said authority in favour of the petitioner vide Ext.P1 dated 23.12.1998. The said order was challenged by the first respondent by preferring C.M. Appeal No. 152/2000 before the District Court along with a petition to condone the delay in filing the same. The District Court, however, found that the reasons stated for condoning the delay in filing the appeal were not satisfactory and hence the petition to condone the delay was dismissed, which, as a nature consequence, led to the dismissal of the appeal as well.
WP(C) No. 23583 of 2005 : 2 :
3. Met with the circumstances, the first respondent challenged the above proceedings by filing O.P. 6295 of 2003 before this Court. After hearing both the sides, this Court vide judgment dated 13.01.2005 held that an opportunity should have been given to the petitioner therein (first respondent herein) to have the matter considered on merits. Accordingly, the impugned order was set aside, the delay in filing the C.M. Appeal was condoned and the appeal was restored and the original petition was disposed of, directing the District Court to finalise the matter on merits within 6 months from the date of receipt of a copy of the judgment. Based upon the above judgment, the matter was considered afresh by the court below leading to Ext.P2 verdict which is under challenge in this writ petition.
4. The learned counsel for the petitioner submits that the challenge is mainly on two grounds; firstly, that the C.M. Appeal itself was not maintainable and secondly, that the learned District Judge ought not to have entered into the merits of the case, having chosen to remand the matter for fresh consideration by the Special Tahasildar which otherwise is likely to influence the decision making process to be pursued by the Special Tahasildar. On the other hand, it is submitted by the learned counsel for the WP(C) No. 23583 of 2005 : 3 : first respondent that the appeal is very much maintainable in view of the specific stipulation in the statute and further, having the matter become final by virtue of the judgment passed by this Court in O.P. 6295 of 2003, giving appropriate direction to the District Court to finalise the Appeal on merits.
5. With regard to the question of maintainability, the learned counsel for the petitioner asserts that the Ext.P1 order cannot be an order passed under Section 11 of the Kanam Tenancy Abolition Act and that it can only be regarded as an order under Section 16, under which circumstances the only remedy available to the first respondent could have been by invoking the writ jurisdiction of this Court, particularly when the jurisdiction of civil court is barred under Section 26 of the Act. Referring to Section 9 and 10 of the said Act, the learned counsel pointed out that the term used under sub Section 2 of Section 11 as to the right of appeal is only against "an" order of the settlement officer and not against 'any' order. The learned counsel further submits that the particular order as contemplated under sub Section 2 of Section 11 is an order as envisaged under sub Section 1 of Section 11 i.e. with regard to an order passed under Section 10 as to the apportionment of an amount payable under sub Section 2 of the WP(C) No. 23583 of 2005 : 4 : Section 4 among the persons entitled thereto which shall have the effect of a deemed decree of a civil court.
6. Section 16 under 'Chapter III' of the above Act specifically deals with the various aspects as to the 'Kanam advance' of the amount paid to the 'Jenmi'. It specifically deals with the right of the Government to receive an amount from each of the 'Kanam Tenants' as to the amount payable towards compensation for extinguishment of his liability to pay 'Jenmikaram' to the 'Jenmi'. Obviously, it does not deal with the disputed right or title as to the property and the persons who are actually entitled to avail the benefits provided therein as a 'Kanam Tenant'.
7. Coming to Section 11, it has got two limbs (provided under each subsection) which apparently are liable to be treated as distinct in their existence, particularly, in view of the 'non-obstante' clause provided under the sub Section 2. Sub Section 1 deals with the order of the settlement officer in deciding an objection or claim under Section 10 or apportioning the amount payable under sub Section 1 of Section 4 among the persons entitled thereto, declaring that such an order shall deemed to be a decree of civil court and as to the manner/extent of its contents. Sub Section 2, as stated already, begins with a 'non-obstante' WP(C) No. 23583 of 2005 : 5 : clause. It says:
"Notwithstanding anything contained in any law, 'any person' aggrieved by an order of the settlement officer may appeal within 30 days of the receipt by him of the order to the District Court having jurisdiction over the area in which the holding is situate, and the order of the District Court on such appeal shall be final".
Even a plain reading of the above provision will show that the scope of sub Section 2 is not confined to a particular order of the settlement officer under Section 11(1) and that sub Section 2 is liable to be treated as an independent provision by itself taking all the orders passed by the settlement officer within its sweep. The only ingredient to be looked into, according to the learned counsel for the first respondent, is whether there is an order passed by the settlement officer and if the person concerned is aggrieved by such an order, which is more so, when the terminology used therein confers the right on "any person aggrieved".
8. The scope and ambit of Section 11, though not in so many words, has been considered by the court below as well, holding that Ext.P1 order is very much appealable by virtue of the - statutory prescription - as provided under Section 11 (2) of the Act,. Considering the specific terminology used and the circumstances contemplated under the different provisions as discussed already, WP(C) No. 23583 of 2005 : 6 : this Court finds it difficult to accept the proposition made by the learned counsel for the petitioner that appeal is not maintainable, which hence stands answered in favour of the first respondent herein.
9. Yet another aspect to be noted in this context is as to the sanctity of Ext.R1(f) judgment passed by this Court in O.P. 6295 of 2003 wherein the dismissal of the petition to condone the delay in filing the appeal preferred by the first respondent was dealt with. After hearing both the sides, it was held by this Court, that the order passed by the court below dismissing the petition to condone the delay in filing the appeal and the consequential dismissal of the appeal itself was not correct or sustainable and accordingly the matter was directed to be considered on merit. Obviously, there was no case for the present petitioner while passing the said verdict, that the Appeal was not maintainable.
10. True, maintainability of the appeal before the District Court is a question of law and there cannot be any estoppal against the law. But it cannot be said that this Court while passing Ext. R1(f) judgment was ignorant of the relevant provisions of law, giving specific directions to the court below to consider the Appeal on merits. In other words, the effect of the inter - party judgment of WP(C) No. 23583 of 2005 : 7 : this Court is not liable to be nullified, making it a futile exercise. It is more so, when the question as to the maintainability of the Appeal was not specifically raised or sought to be discussed therein as stated already, and further when it has now been declared that appeal is very much maintainable.
11. The other grievance of the petitioner is that the learned District Judge has gone into the merits of the case which ought not to have been done, when the matter was remanded for fresh consideration. What is discernible from Ext. P2 order is only a discussion as to the sequence of events and the probable consequences flowing from Ext.P1 order passed by the settlement officer without hearing the affected parties i.e first respondent herein. The operative portion of Ext.P2 order is extracted below:
"In the result, appeal is allowed with costs of the appellant. The impugned order of the Special Tahsildar dated 23.12.1998 is hereby set aside and the matter is remanded back with the specific direction to implead the appellant also in this matter and to pass appropriate orders in accordance with law after affording the appellant a reasonable of opportunity of being heard".
Obviously, the District Court, while remanding the matter, has not WP(C) No. 23583 of 2005 : 8 : directed the Special Tahsildar to deal with the issue in a particular manner or with reference to the observations made therein. On the other hand, the Special Tahasildar has been given full freedom and authority to pass appropriate orders in accordance with law, but after giving an opportunity of hearing to the appellant/first respondent herein. The scope of Ext.P2 order is hereby clarified to the above extent.
12. In the above circumstances, this Court finds no merit to interfere with the impugned verdict passed by the District Court. However, it is made clear that the concerned Special Tahsildar shall consider the case afresh, untrammeled by any of the observations contained in Ext.P2 judgment remanding the matter, after affording an opportunity of hearing to both the sides. Both the parties are permitted to supplement their pleadings, if so desire, and to adduce evidence in support of their rival claims.
The writ petition fails; it is dismissed accordingly. Parties shall bear their respective costs.
P.R. RAMACHANDRA MENON, JUDGE kmd