IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 36906 of 2004(R) -------------------------- PETITIONER: ----------------- CHALIYAPARAMBIL KUMARAN, S/O.KRISHNAN, KUMARAMPUTHUR P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: --------------------- 1. THE APPELLATE AUTHORITY(LAND REFORMS), THRISSUR. 2. K.R.JAYAKUMAR, S/O.K.R.RAMA GUPTAN, KULAPPADAM ESTATE, KUMARAMPUTHUR P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. 3. MUTHIYALAT MOOPPIL NAIR(DIED), KOTTAPPURAM P.O., KARIMPUZHA VILLAGE, REP. BY MUPIL STHANAM AGENT B.A.GANGADHARA MENON, NAKKUTHADATHIL PATHAYAPURAYIL, P.O.VILAYUR, VIA. PATTAMBI. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R3 SRI.K.M.SATHYANATHA MENON FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.7586/2010 IN W.P.(C).No.36906/2004 ------------------- Dismissed 30/11/2010 Sd/- Harun-Ul-Rashid, Judge. APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER DATED 17/11/1975 IN SM.N.1175/1973 AND PURCHASE CERTIFICATE DATED 17/11/1975. EXT.P2 TRUE COPY OF THE ORDER DATED 12/3/1975 OF THE DISTRICT COURT, PALAKKAD IN O.P.NO.43/1974. EXT.P3 TRUE COPY OF THE ORDER DATED 20/1/1977 OF THE TALUK LAND BOARD, MANNARKKAD IN C.C.NO.576/73. EXT.P4 TRUE COPY OF THE I.A.NO.119/2003 EXT.P5 TRUE COPY OF THE COUNTER STATEMENT DATED. 29/08/2003. EXT.P6 TRUE COPY OF THE ORDER DATED. 8/10/2004 IN I.A.NO.119/2003 IN A.A.NO.25/2003. RESPONDENTS' EXTS: EXT.R2(a) TRUE COPY OF THE CAVEAT O.P.NO.21/21003 FILED BEFORE THE MUNSIFF'S COURT, MANNARKAD. EXT.R2(b) TRUE COPY OF THE REPORT OF THE TAHSILDAR. True Copy P.S. to Judge HARUN-UL-RASHID,J. ------------------------------- W.P.(C).NO. 36906 OF 2004 ------------------------------- DATED THIS THE 30TH DAY OF NOVEMBER, 2010 JUDGMENT Petitioner is the applicant in O.A.No.1175/1973 on the file of the Land Tribunal No.III, Mannarghat. The Land Tribunal by order dated 17/11/1975 issued purchase certificate to the petitioner. The 2nd respondent herein is the intermediary. In the proceedings before the Land Tribunal, the 2nd respondent was represented by Smt. K.R. Kuhimalu Ammal, who is the paternal Aunt of the intermediary. The Land Tribunal, Mannarghat declared that the petitioner is a tenant entitled to fixity of tenure. Ext.P1 is the order passed by the Land Tribunal in O.A.No.1175/73. Ext.P1 (3) is the certificate of purchase issued to the applicant. Ext.P2 is the order dated 10/4/1975 in O.P.No.43/1974 passed by the District Court, Palghat appointing K.R. Kunhimalu Ammal as the guardian of the person and properties of the 2nd respondent, who was minor aged 17 at that time. -2- WP(C).No.36906/2004 2. The 2nd respondent/intermediary filed an appeal before the Appellate Authority, Land Reforms, Thrissur challenging the order of assignment passed by the Land Tribunal. The appeal was filed belatedly and therefore the appellant filed I.A.No.119/2003 in A.A.No.25/2003 to condone the delay. The 2nd respondent filed the appeal after attaining majority. The appeal was filed 28 years after the order of the Land Tribunal. 3. Ext.P4 is the copy of the I.A.No.119/2003 filed for condoning the delay of 27 years. In paragraph 3 of the said IA the only statement is that the appellant came to know about the purchase certificate issued to the petitioner herein, the lst respondent in I.A.No.119/2003, only on 2/1/2003 from the written statement of the B party in Section 145 Cr.P.C. proceeding before the Revenue Divisional Officer, Ottapalam. It is stated that the delay in filing th appeal is not intentional and that there is no laches or negligence on his part. Therefore, he prayed for condoning the -3- WP(C).No.36906/2004 delay. The only reason stated is that he came to know about the order passed by the Land Tribunal only on 2/1/2003. Apart from one bald sentence in the affidavit filed in support of the petition for condonation of delay, nothing has been stated explaining the reason for the belated filing of the appeal nor any materials are produced to substantiate his contention that he came to know about the order passed by the Land Tribunal only on 2/1/2003. The applicant in I.A.No.119/2003 also did not care to adduce any evidence in support of his contention. 4. Ext.P5 is the detailed counter affidavit filed by the writ petitioner, who is the lst respondent in I.A.No.119/2003. It is stated that he seriously opposed the application for condonation of delay. It is contended inter alia that the proceedings were started in the year 1973 while the petitioner's father was alive, that his father was aware of the proceedings, which culminated in passing the order in 1976, that the applicant was represented by his paternal -4- WP(C).No.36906/2004 Aunt before the Land Tribunal, that the paternal Aunt was appointed as the Guardian of the applicant by the District Court, Palakkad, that the applicant in O.A. is residing in the disputed property for the last more than 45 years, that the petitioner in IA is fully aware of the possession and enjoyment of the property of the applicant as a tenant for more than 4 decades and that the present appeal and the application for condonation of delay are filed without any bona fides. According to him, the proceedings were initiated only in 2003 because there arose a dispute between the two sections of the people in the community. The dispute relates to the conduct of a festival in the local temple. The petitioner opposed the application also stating that the petitioner attained majority in the year 1976, that the petition is seen filed 27 years after attaining majority, that there is no justification for filing an application for condonation of such an inordinate delay and therefore prayed for dismissal of the application. I have gone through the averments in -5- WP(C).No.36906/2004 the affidavit filed in support of the I.A.No.119/2003. The only reason stated in the affidavit filed in support of the IA is that the petitioner came to know about the order passed by the Land Tribunal only on 23/1/2003. The petitioner did not care to substantiate the same by adducing any evidence. Even the averment in the application for condonation of delay is a single sentence averment. It is difficult to believe the averments in the application in the facts and circumstances of the case. As pointed out by the learned counsel for the petitioner, the applicant in the OA is residing in the property which is an adjacent property belonging to the intermediary and that the writ petitioner is residing with his family for the last more than 4 decades. Now the appeal is directed challenging the order passed by the Land Tribunal contending that the applicant in OA has no right over the property in dispute. The intermediary did not enquire as to what capacity the applicant in OA is enjoying the property for the last more than 4 -6- WP(C).No.36906/2004 decades. It is a fact that the respondent was aged 17 at the time of passing the order by the Land Tribunal. From Ext.P1 order, it is seen that he was represented by his paternal Aunt, Kunhimalu Ammal. The very same lady was appointed as the legal guardian even in the proceedings initiated in 1974. She was appointed as the guardian in the year 1975. Purchase certificate was issued in the year 1976. In the facts and circumstances narrated above, I find no justification for the appellant to approach the Appellate Authority (LR) after a period of 27 years. In the context mentioned supra it may be true that the appellant moved the Appellate Authority because of the enmity towards the applicant in OA which according to the applicant in OA is as a result of the dispute regarding the conduct of the festival in the local temple. The question is whether the applicant has satisfactorily explained the delay in filing the appeal. As I said earlier, there is no explanation at all and no materials are produced in support of the averments that -7- WP(C).No.36906/2004 the belated filing of the appeal is due to the reasons stated in the affidavit. I find that Ext.P6 order passed by the Appellate Authority is wrong and unsustainable in law. Therefore, Ext.P6 order is set aside. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.