IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 CRP.NO. 520 OF 2006() --------------------- {IN IA.40/1993 IN AA.61/1993 OF APPELLATE AUTHORITY (LAND REFORMS), KANNUR IN SM.2844/1977 OF LAND TRIBUNAL, KANNUR} .................... REVN. PETITIONER(S): APPELLANT: --------------------------------------- MADAI THIRUVARKATTU DEVASWOM, REPRESENTED BY ITS EXECUTIVE OFFIER, CHIRAKKAL KOVILAKAM DEVASWOMS OFFICE P.O. CHIRAKKAL, KANNUR DISTRICT. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SMT.VIDHYA. A.C RESPONDENT(S)/RESPONDENT: ---------------------------------- 1. THE MANAGING DIRECTOR, M/S. SUPSER CLAY MINERALS AND MINING CO.LTD., PAPPINISSERY, KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADVS. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE, SRI.E.K.NANDAKUMAR, & SRI.A.K.JAYASANKAR NAMBIAR R2 BY GOVERNMENT PLEADER SRI.M.L.SAJEEVAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ALONG WITH CRP NO.710 OF 2006 ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- C.R.P.No.520 & 710 of 2006 --------------------------------------------------- Dated this the 15th day of March, 2010 O R D E R Both the revisions are filed by the landlord, a Devaswom, impeaching the correctness of the orders passed by the Appellate Authority (Land Reforms), Kannur dismissing the appeals and petitions moved for condoning the delay in preferring two appeals against the orders passed by the Land Tribunal No.V, Kannur, assigning the right, title and interest over the properties covered in S.M.P.Nos.2844/77 and 2845/77 on its file in favour of the respondent, at present, a Government owned company. The Land Tribunal passed orders in the above proceedings recognising the respondent's claim as a cultivating tenant. Assignment of 11.50 acres of land and another extent of 11.38 acres both in the same survey number in R.S.No.46/1 was ordered in favour of the respondent company directing issue of purchase certificate. Admittedly, the land belonged to the revision petitioner Devaswom. The claim of the company was C.R.P.No.520 & 710 of 2006 :: 2 :: on the basis of a Marupattom cheet dated 4.7.1974. The respondent company is engaged in the production of ceramics, tiles, goods etc. and the raw material clay taken from the land involved is used for the manufacturing purposes. The Devaswom moved the appeals fourteen years after the passing of the orders by the Land Tribunal with a delay petition setting forth a case that it had no notice of the proceedings of the Land Tribunal and, further, the respondent company which, at the most, had only a commercial lease in its favour could not have set up any tenancy claim over the land. Orders passed by the Land Tribunal assigning the title over the land in favour of the respondent was impeached as illegal and repugnant to the provisions of the Land Reforms Act. The delay condonation petitions moved by the Devaswom were earlier allowed by the appellate authority, but it was challenged by way of a writ petition by the respondent company. Setting aside the order of the appellate authority this court directed for examining the matter C.R.P.No.520 & 710 of 2006 :: 3 :: afresh after affording an opportunity to both sides to present their case. After such remand, the appellate authority had passed the orders impugned in the respective revisions dismissing the delay petition and consequently the appeals as well. 2. I heard the learned counsel on both sides. 3. The learned counsel for the revision petitioner pointing out that even on the admitted case of the respondent company its interest whatsoever in the land covered by the proceedings commenced only after 4.7.1974 i.e. long after the advent of the Land Reforms Act and the provisions thereunder interdicting any future tenancy. The claim raised by the respondent company could not have been entertained by the Land Tribunal, submits the counsel. Reference was also made to Section 3(iii) of the Act that no tenancy can be canvassed or established in respect of leases of land specifically granted for industrial or commercial purposes. The reasoning followed by the appellate authority for rejecting the C.R.P.No.520 & 710 of 2006 :: 4 :: delay petition without reference to the legality and propriety of the orders passed by the Land Tribunal, where on the face of it is shown to be not sustainable and legal, is seriously taken exception to by the learned counsel for the revision petitioner. Non- production of the files by the Devaswom to establish absence of receipt of notice which was considered as a relevant factor by the appellate authority to disbelieve the case canvassed for condoning the delay, according to the counsel, is an innocuous circumstance when positive evidence had been let in by examining one responsible official of the Devaswom to substantiate the cause shown for condoning the delay. The period of delay sought for condonation cannot be given unmerited significance where the illegality of the order which is challenged in the appeal is patently clear is the further submission of the counsel seeking indulgence of this court in reversing the order of the appellate authority and for remitting the case for disposal on its merits. C.R.P.No.520 & 710 of 2006 :: 5 :: 4. Per contra, the learned counsel for the respondent company contended that no sufficient reason, leave alone any reason acceptable was canvassed or pointed out for condoning the inordinate delay. The Devaswom had full knowledge of the issue of the purchase certificate in favour of the company and also its activities in the land covered by the proceedings as a full owner ever since the completion of the proceedings before the Tribunal is the further submission of the counsel that no interference with the orders passed by the appellate authority is called for in exercise of the revisional jurisdiction. 5. I have considered the rival submissions made by the counsel with reference to the order passed by the appellate authority and also that of the Land Tribunal. It is not disputed that the respondent company has set up a tenancy right over the land covered by the proceedings on the basis of a Marupattom deed dated 4.8.1974. How far a company, whether it is private property or public can C.R.P.No.520 & 710 of 2006 :: 6 :: claim the status of a cultivating tenant, under the provisions of the Land Reforms Act was not gone into by the Land Tribunal while assigning the right, title and interest over the land involved in favour of that company. Leaving aside that question, even assuming that the company can also claim so, the larger question emerge for consideration in the given facts of the case whether it was cultivating the land when its action is confined to excavating clay from the land for manufacturing purposes. The merit of the case may also loom large in some cases in appreciating delay sought to be condoned in challenging the orders of an inferior court or Tribunal. Where it is shown on the face of the record that there was non-application of the mind by the Land Tribunal while passing orders of assignment, I find that the period of delay sought to be condoned cannot be given much significance. The Apex Court in Collector (Land Acquisition), Anatnag v. Katiji {AIR 1987 SC 1353} has pointed out that it is not the period of delay that is sought to be C.R.P.No.520 & 710 of 2006 :: 7 :: condoned which has to be given significance, but the question whether the failure to condone the delay is likely to render justice a casualty. The Apex Court has called for liberal approach laying down the principles to be followed in such cases: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. C.R.P.No.520 & 710 of 2006 :: 8 :: 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that a judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 6. A justice oriented approach with reference to the principles evolved is directed to be followed by the Apex Court in considering the question of condoning the delay. A Division Bench of this court following the decision of the Apex Court in Thomas v. Mukunda Menon {1992(2) KLT 9} has held that a liberal approach is to be taken in the matter of condoning delay. 7. On consideration of the facts and circumstances presented with reference to the legal principles evolved by the Apex Court and this court in the decisions referred to above, I find a C.R.P.No.520 & 710 of 2006 :: 9 :: reconsideration of the condonation of delay sought for by the revision petitioner Devaswom is essential to do justice. In the circumstances, setting aside the orders impugned in the revision, the appellate authority is directed to reconsider the petitions for condoning the delay in presenting the appeal and pass orders afresh taking note of the observations made above and in accordance with law, after affording reasonable opportunity to both sides to lead evidence in support of their cases. Revisions are disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//