REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3331 of 2002

State of Kerala & Anr. …Appellant(s)

Versus

Kondottyparambanmoosa & Ors. …Respondent(s)

J U D G M E N T

TARUN CHATTERJEE, J.

1.The present appeal is filed at the instance of the State of

Kerala & Another against the impugned judgment dated

1

st

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’).

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2.The 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 their family.

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.

3.Accordingly, 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.

Accordingly, the objection statement was filed by the

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respondents and the same was verified through the

Authorised Officer.

4.The Board at its sitting on 13

th

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.

5.Against 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

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case was rejected only on the ground that the delay could

not be condoned.

6.However 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.

7.Accordingly, the case was reopened and notice was

issued to the respondents stating that as per the enquiry

report dated 7

th

of January,1976, the family of the

respondent consisted of only 5 members as on 1

st

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 10

th

of

June,1992.

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8.The 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 1

st

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

reopened.

9.The Board by its order dated 10

th

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.

10.Being dissatisfied by the aforesaid order, the

respondents filed Revision Petition dated 6

th

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 13

th

of June,1985 was

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merged with the revisional order of the High Court and,

therefore, the case could not be reopened under Section 85

(9) of the Act.

11.The High Court by the impugned judgment dated 1

st

of

June, 2001 allowed the Revision Petition filed by the

respondents on a finding that the order dated 13

th

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.

12.Being 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.

13.We have heard the learned counsel for the parties and

examined the judgment of the High Court and the Board and

other materials on record.

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14.The 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.

15.Before 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 13

th

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 13

th

of June,1985 that the

Taluk Land Board cannot do as the said order

has been affirmed in Revision by this Court.

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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 Act.”

16.Let 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 1

st

of June, 2001 was incorrect as the

same was not in agreement with the judgment of this Court

in Kunhayammed & Others Vs. State of Kerala & Anr.

[(2000) 6 SCC 359].

17.It 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

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High Court on the ground of delay did not amount to

confirmation of the order of the Board dated 13

th

of

June,1985.

18.These 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 16

th

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.

19.It 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.

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20.Having 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 13

th

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.

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(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

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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.

21.It is clear that the Board vide its order dated 13

th

of

June,1985 held that the respondents were not liable to

12

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.

22.In 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:

“The principle 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.”

23.Again in Shankar Ramchandra Abhyankar vs.

Krishnaji Dattatraya Bapat [(1969) 2 SCC 74], this Court

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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.”

24.Approving the principles laid down in Shankar

Ramchandra Abhyankar’s case (supra), this Court again in

Kunhayammed & Ors. Vs. State of Kerala & Anr. [2000

(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.”

(Emphasis supplied)

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25.Keeping 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 delay.

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

Chandi Prasad and Others Vs. Jagdish Prasad and Ors.

(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.)

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26.In 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 exist.

27.For 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 13

th

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 13

th

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

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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.

28.For 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.

…….…………..…J.

[Tarun Chatterjee]

New Delhi; ……………………J.

August 05, 2008 [Harjit Singh Bedi]

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