State of Kerala &
ANR. Vs. Kondottyparambanmoosa & Ors.  INSC 1313 (5 August 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3331 of 2002 State of
Kerala & Anr. ...Appellant(s) Versus Kondotty parambanmoosa & Ors.
TARUN CHATTERJEE, J.
present appeal is filed at the instance of the State of Kerala & Another
against the impugned judgment dated 1st of June, 2001 passed by the High Court
of Kerala at Ernakulam in C.R.P. No. 1365 of 1992 whereby the High Court had
allowed a Revision Petition filed by the respondents and set aside the order of
the Taluk Land Board (hereinafter referred to as the `Board') and directing
that the Board may proceed afresh under sub- section (9) of Section 85 of the
Kerala Land Reforms Act, 1963 (in short `the Act').
brief facts leading to the filing of this appeal may be narrated as under :
The Respondents had
filed a statement under Section 85(A) of the Act relating to lands held by
According to the
verification report, the family of the respondent consisted of five members
including the respondent, his wife and three minor children. According to the
said verification report the total extent of land held by the family was
equivalent to 25.40 standard acres. Out of this 0.85 acre of land was eligible
for exemption under Section 81 of the Act. After allowing the family of the
respondent to retain standard acres equivalent to 18.72 acres, it was
provisionally concluded that the family held 36.88 acres of land in excess of
the ceiling limit.
a draft statement with a notice under Rule 12(i) of the Kerala Land Reform
(Ceiling) Rules was issued to the respondents to file objections, if any,
against the draft statement and also to appear for hearing before the Board.
objection statement was filed by the respondents and the same was verified
through the Authorised Officer.
Board at its sitting on 13th of June,1985 held that the respondents were in
possession of 10.63 standard acres, out of which 0.85 acres had fallen under
the exempted category. The net extent accountable was 18.47 acres. The
respondent's family was entitled to retain 11 standard acres. The respondents
were thus not liable to surrender any land.
the above judgment of the Board, the appellants had preferred a Revision along
with an application for condonation of delay. However the High Court dismissed
the application for condonation of delay and accordingly the Revision was also
dismissed as belated. It is evident from the order of the High Court passed in
the aforesaid Revision Case that the High Court had not at all dealt with the
merits of the Revision Case as the Revision case was rejected only on the
ground that the delay could not be condoned.
on scrutiny of the order of the Board by the State Land Board, it was found
that the respondents were entitled to retain only 10 standard acres of land as
against 11 standard acres worked out by the Board. In view of this, the State
Land Board directed the Board to re-open the case.
the case was reopened and notice was issued to the respondents stating that as
per the enquiry report dated 7th of January,1976, the family of the respondent
consisted of only 5 members as on 1st of January,1970, and that the family was
holding 11 standard acres instead of the prescribed limit of 10 standard acres
for a family consisting of 5 members. The respondents were called upon to file
their objections, if any, by 10th of June,1992.
respondents filed their objection, the main objection of the respondent was
that in the draft statement issued by the Board, it was shown that the family
consisted of 6 members as on 1st of January,1970 and that his family was
entitled to hold 11 standard acres. It was also objected that since the order
of the Board had become final, the cause of rejection of earlier Revision Case
by the High Court on the ground of delay, the matter was not liable to be
Board by its order dated 10th of June,1992 decided to reopen the case under
Section 85(9) of the Act as amended by Act 16 of 1989 and to proceed afresh
after issuing a revised draft statement.
dissatisfied by the aforesaid order, the respondents filed Revision Petition
dated 6th of July,1992 before the High Court, challenging the order of the
Board reopening the case. The main ground for challenge was that the earlier
order of the Board dated 13th of June,1985 was merged with the revisional order
of the High Court and, therefore, the case could not be reopened under Section
85 (9) of the Act.
High Court by the impugned judgment dated 1st of June, 2001 allowed the
Revision Petition filed by the respondents on a finding that the order dated
13th of June, 1985 ceased to exist as it was merged with the order of the High
Court dismissing the revision and that there was no scope for invoking Section
85(9) of the Act.
aggrieved and dissatisfied with the aforesaid judgment of the High Court, the
appellant has filed this Special Leave Petition in this Court which, on grant
of leave, was heard by us in presence of learned counsel for the parties.
have heard the learned counsel for the parties and examined the judgment of the
High Court and the Board and other materials on record.
questions that need to be decided in this appeal are as under:
First, whether the
dismissal of a Revision Petition on the ground of delay would result in the
merger of the order of the lower court with that of the High Court.
And, whether the High
Court was right in holding that the order of the Board ceased to exist when the
Revision was dismissed by the High Court and as such there was no scope to
invoke Section 85(9) of the Act.
we answer these questions, it would be expedient at this stage to record the
findings of the High Court while allowing the Revision Petition filed by the
Respondents and thereby setting aside the order of the Board. Accordingly, we
reproduce those findings as under :- "The Land Board has conducted an
investigation and passed orders. The result is the order dated 13th of
June,1985 do not exist. But that order had ceased to exist when the Revision
was dismissed by the High Court. As such, there was no scope to invoke Section
85(9). The present situation will amount to an issue which can be contrary to
the order dated 13th of June,1985 that the Taluk Land Board cannot do as the
said order has been affirmed in Revision by this Court.
7 As such I hold
that the Land Board has no jurisdiction under Section 85(9) of the Act to
reopen its earlier order and to initiate proceedings under Section 85(9) of the
us now consider the submissions of the learned counsel for the parties. The learned
counsel for the appellants argued before us that the impugned judgment of the
High Court dated 1st of June, 2001 was incorrect as the same was not in
agreement with the judgment of this Court [(2000) 6 SCC 359].
was also submitted that the principle of merger would be applicable only if the
revisional judgment of the High Court could be said to be a judgment on merits
and the same principle would not be applicable to the facts of the present case
since in this case the revision was dismissed by the High Court only on the
ground of delay and not on merits. The learned counsel for the appellants
accordingly submitted that the dismissal of the revision petition by the High
Court on the ground of delay did not amount to confirmation of the order of the
Board dated 13th of June,1985.
submissions of the learned counsel for the appellants were contested by the
learned counsel appearing on behalf of the respondents. The learned counsel for
the respondents contended that according to the order passed by the Board dated
16th of June,1985, the respondent was not liable to surrender any land and once
the order of the Board had been affirmed by the High Court of Kerala, the Board
could not reopen the case because the order of the Board had completely merged
with the order of the High Court passed in revision.
was finally argued that the appellants have not given any reason to reopen the
case and that the State cannot be permitted to reopen the assessments which
have attained finality unless it could show special reasons for doing the same.
heard the learned counsel for the parties and after carefully examining the
aforementioned orders, we are unable to agree with the finding of the High
Court that the order passed by the Board dated 13th of June,1985 had ceased to
exist when the Revision was dismissed by the High Court only on condonation of
delay but not on merits and that the Board had no jurisdiction under Section
85(9) of the Act to reopen its earlier order.
Section 85 of the Act
deals with surrender of excess lands. It runs as under :- (1) Where a person
owns or holds land in excess of the ceiling area on the date notified under
Section 83, such excess land shall be surrendered as hereinafter.
Provided that where
any person bona fide believes that the ownership or possession of any land
owned or to be resumed by the land owner or the intermediary under the
provisions of this Act, the extent of the land so liable to be purchased or to
be resumed shall not be taken into account in calculating the extent the land
to be surrendered under this sub-section.
10 (9) The Taluk
Land Board may, at any time, set aside its order under sub-section (5) or sub-
section (7), as the case may be, and proceed afresh under that sub-section if
it is satisfied that - (a) the extent of lands surrendered by, or assumed from,
a person under section 86 is less than the extent of lands which he was liable
to surrender under the provisions of this Act, or (b) the lands surrendered by,
or assumed from, a person are not lawfully owned or held by him; or (c) in a
case where a person is, according to such order, not liable to surrender any
land, such person owns or holds lands in excess of the ceiling area;
Provided that the
Taluk Land Board shall not set aside any order under this sub-section without
giving the persons affected thereby an opportunity of being heard;
Provided further that
the Taluk Land Board shall not initiate any proceedings under this sub-section
[after the expiry of seven years] from the date on 11 which the order sought
to be set aside has become final.
A plain reading of
Section 85(9) of the Act would clearly show that the Board is conferred with
the power to set aside its order under sub-section (5) or sub-section (7) and
proceed afresh under that sub-section if grounds mentioned in Section 85(9) are
satisfied. It is also clear from the proviso to Section 85(9) that such power
can be exercised only when 7 years had not expired from the date on which the
order sought to be set aside had become final.
Before we proceed
further, we may keep it on record that question of expiry of 7 years in the
facts and circumstances of the case does not arise at all. Therefore, let us
proceed on the question whether the rejection of the revision petition of the
High Court on the ground of delay would take away the right of the Board to
proceed afresh under Section 85(9) of the Act.
is clear that the Board vide its order dated 13th of June,1985 held that the
respondents were not liable to surrender any land. However it cannot be said
that the aforesaid order has merged with the order of the High Court dismissing
the Revision petition of the appellant State as the same was dismissed on the
ground of rejection of the application for condonation of delay and not on merits.
this connection, the decision of this Court in the case of Smt. S. Kalawati vs.
Durga Prasad & Anr. [AIR 1975 SC 1272] may be strongly relied upon. In
paragraph 7 of the said decision, this Court observed as follows:
behind the majority of the decisions is thus to the effect that where an appeal
is dismissed on the preliminary ground that it was not competent or for non-
prosecution or for any other reason the appeal is not entertained, the decision
cannot be said to be a decision on appeal nor of affirmance. It is only where
the appeal is heard and the judgment delivered thereafter the judgment can be
said to be a judgment of affirmance."
in Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat [(1969) 2 SCC
74], this Court 13 laid down the pre-conditions attracting applicability of
doctrine of merger in the following manner :
(i) the jurisdiction
exercised should be appellate or revisional jurisdiction;
(ii) the jurisdiction
should have been exercised after issue of notice; and, (iii) after a full
hearing in presence of both the parties."
the principles laid down in Shankar Ramchandra Abhyankar's case (supra), this
Court again in (6)SCC 359], has observed as follows :- "Once the superior
court has disposed of the lis before it either way - whether the decree or
order under appeal is set aside or modified or simply confirmed, it is the
decree or order of the superior court, tribunal or authority which is the
final, binding and operative decree or order wherein merges the decree or order
passed by the court, tribunal or the authority below. However, the doctrine is
not of universal or unlimited application. The nature of jurisdiction exercised
by the superior forum and the content or subject- matter of challenge laid or
which could have been laid shall have to be kept in view."
these principles as enunciated by this Court in the aforesaid three decisions
in mind and applying the said principles in the facts of this case, we have no
hesitation in our mind to conclude that the High Court in the impugned order
did not at all consider that in the earlier revision order of the High Court,
revisional application was rejected not on merits but only on the ground of
Therefore, it must be
held that since earlier revision application was not rejected on merits, the
said order rejecting the same on the ground of delay cannot be said to be the
order of affirmance and that being the position, we must hold that since the
earlier revision petition was not decided on merits, the doctrine of merger
cannot be applied to the facts and circumstances of the present case. In this
connection an observation made by this Court in the case of (2004) 8 SCC 724,
needs to be reproduced which is as under:- "When an appeal is dismissed on
the ground that delay in filing the same is not condoned, the doctrine of
merger shall not apply."(Emphasis supplied.) 15
this view of the matter, we are, therefore, of the opinion that the doctrine of
merger would only apply in a case when a higher forum entertains an appeal or
revision and passes an order on merit and not when the appeal or revision is
dismissed on the ground that delay in filing the same is not condoned. In our
view, mere rejection of the revision petition on the ground of delay cannot be
allowed to take away the jurisdiction of the Board, from whose order forms a
subject matter of petition and Section 85(9) of the Act confers powers on the
Board to reopen the case if such grounds for reopening the case are shown to
the reasons aforesaid, we are unable to accept the view expressed by the High
Court to the effect that the order passed by the Board dated 13th of June, 1985
ceased to exist when the revision petition against the said order was rejected
on the ground of delay only. Therefore, we are of the view that the order of
the Board dated 13th of June, 1985 could not be merged with the order of the
High Court passed in revision case. Such being the position, it must be held
that the Board under Section 85(9) of the Act was entitled to reopen the case
in compliance with Section 85(9) of the Act.
the reasons aforesaid, the impugned judgment of the High Court is liable to be
set aside and it is accordingly set aside. The appeal is thus allowed. There
will be no order as to costs.