TMI Blog2008 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 - CIVIL APPEAL NO. 3331 of 2002 - - - Dated:- 5-8-2008 - Tarun Chatterjee, J. JUDGMENT TARUN CHATTERJEE, J. 1. The 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'). 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. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 reopened. 9. The 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. 10. Being 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne, 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 High Court on the ground of delay did not amount to confirmation of the order of the Board dated 13th 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 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come 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 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 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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.) 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 Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
